1979

DENIS SIMON SALIMA BWALYA v THE PEOPLE (1979) Z.R. 1 (S.C.)

SUPREME COURT
GARDNER, AND BRUCE-LYLE, JJ.S. AND CULLINAN, A.J.S.
9TH AND 23RD JANUARY, 1979
S.C.Z. JUDGMENT NO. 6 OF 1979

Flynote

Criminal law and procedure -Trial - Magistrate holding private consultation with State
Advocate and prosecution witness in absence of accused.
Impropriety of.

Headnote

The appellant was convicted of forgery and theft by public servant. Counsel for the appellant
argued that the magistrate had acted unfairly in that he had answered certain questions put
forward in a list by the appellant after holding private consultations with the State Advocate
and the principal police witness in the absence of the appellant.

Held:
(i) It was improper for the magistrate to make the consultations in the absence
of the appellant. In view of the fact that justice was not seen to be done, it
could not be said that miscarriage of justice occurred, and the conviction
would be quashed.

Cases referred to:

(1) Myburgh v R. (1960) R.&N. 148

(2) R. v Bodmin Justices, [1947] 1 All E.R. 109

For the appellant: C.D.M. Mabutwe, Shamwana & Co.

For the respondent: A.H. Odora Obote, State Advocate.

Judgment

GARDNER, J.S.: delivered the judgment of the Court.

The appellant was convicted of eight counts of forgery and nine counts of theft by public
servant, involving a sum of nearly K23,000. The particulars of the offences were that, whilst
employed as a sub-accountant by the Government of the Republic of Zambia, he forged
bank deposit slips and stole the money in respect thereof and, on the last count, that he
directly stole money which came into his hands by virtue of his employment. Mr Mabutwe,
on behalf of the appellant, argued amongst other grounds of appeal, that at one stage of
the trial the magistrate acted unfairly in that he indicated that he had answered certain
questions, which had been put forward in a list by the appellant in conjunction with the
State Advocate and the principal police prosecution witness. The facts giving rise to this
complaint were these: PW1 who was an internal auditor employed by the Ministry of Finance
gave evidence that he had investigated deposits which should have been made by the
appellant and had discovered that a number of such deposits were accounted for on what
appeared to him to be forged deposit slips and the money in respect thereof had not been
received by the bank. After this witness had been cross-examined and re-examined, the
court was informed that PW1 was leaving Government service and was shortly to depart
from the country. The learned resident magistrate therefore adjourned the case for mention
in four days' time so that the appellant could consider the evidence and submit further
questions in cross-examination of PW1 prior to the latter's departure abroad. The learned
resident magistrate made the following note on the record:

"Court: Stresses every effort and consideration is being given to accused as he is

unrepresented to ensure the ultimate absence of PW1. Both agree to be available at 9 a.m.
8/4/74 to ensure the accused has had every opportunity."

On the 8th of April 1974, PW1 was recalled for further cross-examination and thereafter the
learned resident magistrate noted on the record "PW1 accused by consent of accused". On
the 25th of April, 1974, the learned resident magistrate's note on the record reads as
follows:

"Court: Firstly and despite all efforts the accused has filed some questions. He filed
these when appearing before me on mention 22/4//74. The questions however could be
answered by the Court and the State Advocate. The questions and answers are therefore
attached to the record. I shall now read these questions and answers annexed hereto . . ."

The questions and answers take the form of questions in the handwriting of the appellant
with answers in the handwriting of the learned resident magistrate. The nature of the
questions do not concern us but the answers are written as follows: "P1 A Yes. P2 A Yes." In
certain cases the answers are "No" and in others the answers appear as follows: "P1 and P2.
Other witness will ellaborate", and "P1 and P2 No. other witness will elaborate." It is quite
apparent that, when the magistrate, in the answers referred to "P1 and P2", he was
referring to PW1 and PW2. Two irregularities therefore appear. In the first place the learned
resident magistrate said "The questions however could be answered by the Court and the
State Advocate", which means that in order to answer the questions he must have been in
private consultation with the State Advocate and, secondly, the reference to P2 is to a
Senior Superintendent, the investigating police officer in the case, and, in order to record
his answers, that witness must have been present in a private consultation with the
magistrate in the absence of the appellant. In the case of Myburgh v R. (1), Patterson, C.J.,
in commenting on the impropriety of a public prosecutor having an interview with the
magistrate during an adjournment, referred to the case of R v Bodmin Justices (2), in which
Lord Goddard C.J., said at p. 150:

"The applicant was a soldier and this matter arose out of a disturbance in a barrack
room. An officer of the applicant's unit was present in court and was asked to give the man
a character. He gave him a character - not a bad character and added that there was a lot
more that he could say but he would not say it . . . The justices then retired to consider
their sentence, and during their retirement, they sent for the officer and interviewed him in
their room. Whether the officer stayed in the room for one minute or whether he stayed
there for five minutes does not matter. The justices were interviewing a person who had
been in court in connection with the case and had given the justices information in
connection with the case, and they were interviewing him in their room in the absence of
the accused or his advisers. That is a matter which cannot possibly be justified. I am not
suggesting for one moment that the justices had any sinister or improper motive in doing it.
It may be that they sent for the officer in the interests of the accused. It may be that the
information which the officer gave was in the interests of the accused. That does not
matter. Time and again this court has said that justice must not only be done but must
manifestly be seen to be done and, if justices interview a witness in the absence of the
accused, justice is not seen to be done, because the accused does not and cannot know
what was said. The consequence of this unfortunate incident is that this conviction must be
quashed."

In our view, both cases are in point in this case. It was improper in the first instance for the
learned resident magistrate to consult with the State Advocate in the absence of the
appellant, and it could have been seriously prejudicial to consult with the principal police
witness in the same circumstances. It might be argued that the appellant, when he heard
the answers read out, was made aware of the fact that PW2 had been alone with the
magistrate in consultation and that thereafter the appellant had an opportunity to
cross-examine that witness; but the appellant, and indeed the public, will never be aware
of all that was said at the consultation, and the appellant, being unrepresented, was in no
position to complain about the procedure.

In new of the fact that justice was not seen to be done, this court cannot say that no
miscarriage of justice occurred and, in the circumstances, although, as in the case of the
Bodmin Justices (2), we do not suggest that the learned resident magistrate had any
sinister or improper motive, we have no alternative but to quash this conviction.

We have considered whether this is an appropriate case in which to order a retrial; but,
having regard to the fact that the appellant has already served approximately five years'
imprisonment with hard labour of an effective six years and eight months' term of
imprisonment, and having regard to the fact that the prosecution witnesses are no longer
available in this country, we do not propose to make such an order. The appeal is allowed,
the conviction is quashed and the sentence is set aside.

Appeal allowed

ENTRINT ZAMBIA LIMITED v PRAGO LIMITED (FORMERLY CALLED PRAGO

BUILDERS LIMITED) (1979) Z.R. 3 (H.C.)

HIGH COURT
HADDEN, J.
9TH JANUARY, 1979
1976/HP/303

Flynote

Company - Winding up - Set - off and counterclaim - Application where mutual dealings
between the Parties - Money set up for a specific purpose - Necessity for such purpose to
come to an end - Bankruptcy Act, s. 34 and Companies Act, s. 204.

Headnote

The plaintiff made a claim of K40,000 being the balance due to it as sub-contractor to the
defendant following the construction of a school. The defendant claimed to set-off this
amount from a claim it had against the plaintiff in respect of the breach of another contract
to the defendant and counterclaimed a sum of K266,367. The plaintiff submitted that the
defendant could not set-off its counterclaim of K266,367 against the claim of K40,000
because the two contracts were independent contracts and it was never the intention of the
parties that they should follow a course of mutual dealings.

Held:
(i) Section 204 of the Companies Act (Cap. 686) stipulates for the application of
s. 34 of the Bankruptcy Act (Cap. 190) in cases of this nature.

(ii) A right to set-off arises only where there has been mutual dealings between
the parties within the terms of s. 34 of the Bankruptcy Act.

(iii) On the evidence before the court, it was the intention of the parties that the
monetary outcome should be separately settled and the two contracts were
intended to be and were treated as separate and distinct contracts and not as
mere items on one side or the other of a running account. The defendant
could not therefore set-off its claim against that of the plaintiff.

(iv) Emphasis should be placed on the concept of mutual dealings and

consequentially regarding the debts and credits referred to as such mutual
debts and mutual credits as arise from mutual dealings.

(v) The right to set-off cannot apply where money has been handed over for a
specific purpose unless an end has been put to such specific purpose by
agreement between the parties Re City Equitable Fire Insurance Company
Limited (2), applied.

(vi) The quality and nature of specific purpose for which the money was held
continued and continues to be attached to it; there being no consent to it
being held for any other purpose, it cannot be set-off against a claim the
defendant might have against the plaintiff for damages arising from a breach
of another contract.

Cases referred to:

(1) Rolls Razor Limited v Cox, [1967] 1 All E.R. 397

(2) Re City Equitable Pare Insurance Company Limited [1930] All E.R.
(3) Rose v Hart (1818) 8 Taunt 499 2 Moore C.P. 547 129 E.R. 477 4 Digest 403 3672
(4) Elberle's Hotels and Restaurant Company v Jonas (1887) 18 Q.B.D. 459 56 L.J.Q.B.
278 35 W.R. 467 3 T.L.R. 421 C.A.; 10 Digest (Repl) 990 6815
(5) Re Pollitt Ex parte Minor [1893] 1 Q.B. 455 62 L.J.Q.B. 236; 68 L.T. 366; 41 W.R.
276; 9 T.L.R. 195; 37 Sol. Jo. 217; 10 Morr. 35; 4R 253 C.A.;, 4 Digest 395, 3612.
(6) Re Mid - Kent Fruit Factory [1896] 1 Ch. 567; 65 L.J. Ch. 250; 74 L.T. 22; 44 W.R.
284; Jo Sol. Jo. 211; 3 Mans, 59; 10 Digest (Repl.) 989, 5 6811.

Legislation referred to:

Companies Act, Cap. 686, s. 204.

Bankruptcy Act, Cap.190, fit. 34

For the plaintiff: N. Mavrokefalos D.H. Kemp & Co.

For the defendant: G.F. Patel, Martin & Co.

Judgment

HADDEN, J.: The plaintiff claims the sum of K40,000 being the balance due to it as
sub-contractor to the defendant following the construction of the Pemba Secondary School.
The defendant claims to set-off this amount from a claim it has against the plaintiff in
respect of the breach of another contract, called the Group L contract, wherein the plaintiff
was again the sub-contractor to the defendant, and counterclaims the sum of K266,367.

On the 24th October, 1972, the plaintiff and defendant signed an agreement which
provided, inter alia, that the defendant would submit a tender, prepared by the plaintiff, for
the construction of the Pemba Secondary School. If the tender was successful the plaintiff
would perform the greater part of the contract although the defendant would supervise the
carrying out of the works and perform certain other functions as set out in the agreement. If
the contract was awarded to the defendant the agreement provided that a formal contract
between the parties would be executed. The formal contract was executed by the parties
and is dated the 15th April, l 973.

On the 25th January 1974, the parties signed another agreement, this time regarding the
Group L contract. The defendant was to submit the tender and, if accepted, the plaintiff was
to carry out part of the work as sub-contractor to the defendant. In order to enable the
plaintiff to purchase materials and meet certain other initial expenses when starting the
Group L contract the defendant agreed to advance to the plaintiff the sum of K40,000
provided the plaintiff obtained an assurance from a third party, referred to in evidence as a
performance bond, that such third party would carry out the performance of the plaintiff's
obligations under the contract should the plaintiff fail to do so, or pay to the defendant the
sum of K40,000. The sum of K20,000 was paid to the plaintiff on the 8th April, 1974, before
the performance bond had been received, and the plaintiff agreed that if the performance
bond was not issued, the sum of K20,000 could be deducted from payments, due to the
plaintiff in respect of the Pemba contract. The performance bond, which was dated the 1st
April 1974, then became available and the second payment of K20,000 was made by the
defendant to the plaintiff on the 14th May 1974. These two payments totalling K40,000
were to enable the plaintiff to purchase materials to be used in the Group L contract.

Sometime prior to September 1974, a provisional liquidator of the plaintiff was appointed by
the court; in September Mr B.L. Gadsden was appointed Chairman of the Committee of
Management which was to operate a Scheme of Arrangement. A meeting of creditors of the
plaintiff was held on the 15th October 1974, at which the defendant voted in favour of the
scheme and the scheme was subsequently sanctioned by the court. Work on the Pemba
contract was held up in September because of the plaintiff 's financial difficulties, and
following a meeting on the 17th October, the defendant the next day agreed, inter alia, that
Prestige Construction Limited would complete the Pemba contract.

The plaintiff had abandoned the Group L contract when the provisional liquidator was
appointed and approximately K9,000 was subsequently deducted from monthly valuation
payments on the Pemba contract by the defendant in reduction of the K40,000 advanced to
the plaintiff when work on the Group L contract commenced. The Group L contract was
completed by the defendant. Mr Gadsden received a claim from the defendant for the loss
incurred in performing the Group L contract and requested that the defendant submit a
proof of debt together with further details of the claim; some further information was
subsequently provided but not enough to enable the claim to be either admitted or
rejected.

Payments in respect of work done on the Pemba contract were made to Prestige
Construction Limited through Mr Gadsden by the defendant but by a letter dated the 31st
December, 1975, the defendant informed Mr Gadsden that a final payment of K58,100 could
not be made to the plaintiff as the sum of K40,000, due under the performance bond, had
not been paid, and the defendant had other claims against the plaintiff totalling K31,590.
However on the 9th January 1976, all moneys due in respect of the Pemba contract were
paid save for the amount of K40,000.

In evidence Mr J.H. Cruickshank, the senior partner of Peat Marwick Mitchell and Co.,
auditors of the defendant, said that the defendant in completing that part of the Group L
contract that had been abandoned by the plaintiff, had incurred a loss of K266,367. Mr S
Vladimir, the defendant's Contract Manager, testified that the original value of the Group L
contract was about K930,000 but that the final figure was increased by about 10 per cent
principally because of extra work and variations requested by the client. The plaintiff had
completed about 10 per cent of the contract before it ceased work on it. Only a small part of
the increase resulted from an increase in the cost of materials and under the contract this
increase would be met by the employer.

There was no increase in the wages of workmen. Since the institution of these proceedings
the sum of K40,000 had been paid to the defendant by the Zambia State Insurance
Corporation in accordance with the terms of the performance bond.

As Mr Vladimir pointed out, the association between the plaintiff and the defendant with
regard to the tendering for and carrying out of the Pemba and Group L contracts, was
similar in both cases in both contracts the plaintiff was sub-contractor to the defendant and
had to be approved by the employer. The harmonious relationship between the two
companies was illustrated by the witness when he said that the defendant frequently bought
materials for the plaintiff for which payment was made by way of deduction from the
amounts due to the plaintiff on monthly valuation certificates. As the witness did not
approve of this arrangement it was later discontinued.

The defence to the plaintiff's claim for the sum of K40,000 reads:

"2. The Defendant denies that the sum of Forty thousand kwacha (K40,000.00) or
any sum at all remains owing to the Plaintiff because the Defendant is entitled to set off
against the Plaintiff the sum of at least Three hundred and six thousand three hundred and
sixty-seven kwacha (K306,367.00) being the loss incurred by the Defendant because of the
breach by the Plaintiff of another contract dated the 1st day of April, 1974 and made
between the Defendant of the one part and the Plaintiff of the other part whereby the
Plaintiff was to supply materials and complete certain works as sub-contract, or to the
Defendant for the Zambia World Bank Education Project (Secondary Schools) Group 'L' at
Monze, Namwala and Chipepo together with moneys advanced to the Plaintiff it having been
agreed between the Plaintiff and the Defendant that they should follow a course of mutual
dealing by acting as sub-contractor respectively in all projects of the Zambia World Bank
Education Scheme and the contracts for which might be awarded to the Plaintiff."

The defendant counterclaims for the sum of K266,367 being the loss it allegedly incurred in
completing that part of the Group L contract that should have been performed by the
plaintiff the sum of K40,000 having been paid to it since the commencement of these
proceedings, together with interest thereon from the 19th August, 1974, and costs. The
defence to the counterclaim reads:

"Defence to Counterclaim
2. The plaintiff does not admit the defendant sustained a loss in the sum of Three
hundred and six thousand three hundred and sixty-seven kwacha (K306,367.00) as alleged
in paragraph 2 of the Defence and Counterclaim and puts the defendant to strict proof
thereof.
3. The contract dated 1st April 1974 referred to in paragraph 2 of the defence and
counterclaim was in respect only of the Zambia World Bank Education Projects and in no
way relates and is therefore irrelevant proceedings herein; the Pemba Secondary School
project being an independent contract between the defendant of the one part and the
Government of the Republic of Zambia of the other part. Further, it may be implied by an
agreement dated 17th October, 1974 and made between the Committee of Management of
the Plaintiff of the one part and the Defendant of the other part that it was never the
intention of the parties that they should follow a course of mutual dealing in projects for
which the plaintiff acted as sub-contractor to the Defendant.
4. The plaintiff was ordered by this court on 26th September 1974 to convene
separate meetings of its preferential and ordinary creditors for the purpose of considering,
and if thought fit, approving a Scheme of Arrangement to be made between the plaintiff and
its preferential and ordinary creditors pursuant to the provisions of Section 101 of the
Companies Act (Cap. 686 of the Laws of Zambia). The defendant by its representative
attended a meeting convened on the 16th October 1974 of the ordinary creditors of the
plaintiff and as such a creditor voted in favour of the said Scheme. The said Scheme, as
amended at the said meeting was sanctioned by this court on 14th March 1975. A copy of
the Court Order and the said modified and amended Scheme was delivered to the Registrar
of Companies on 21st March, 1975.
5. The plaintiff denies that the defendant is entitled to claim the sum of two
hundred and sixty-six thousand three hundred and sixty-seven Kwacha (266,367.00) as
alleged in paragraph 3 of the counterclaim for the reason that the defendant is a
moratorium creditor of the plaintiff and therefore bound by the said Scheme of
Arrangement. As such a moratorium creator the defendant is entitled upon, filing a proof of
debt with the Chairman The Committee of Management of the plaintiff, only to dividends on
such dates and in such manner as the Committee of Management of the plaintiff from time
to time decides. The said Scheme of Arrangement will be referred to at the trial for its full
terms and effect."

The plaintiff submits that the defendant cannot put-on its counterclaim of K266,367 against
the plaintiff's claim of K40,000 because the Pemba and Group L contracts were independent
contracts and it was never the intention of the parties that they should follow a course of
mutual dealings; and that as the defendant voted in favour of the Scheme which was
subsequently sanctioned by the court, it is a creditor bound by the Scheme.

Section 204 of the Companies Act (Cap. 686) provides:

"In the proof or claim of debts against any company, or in the payment of debts by
the liquidator of any company in course of being wound up under this Act, the principles
regulating the proof, claim, and payment of debts in case of the bankruptcy of any
individual shall be followed."

Section 34 of the Bankruptcy Act (Cap. 190) reads:

"Where there have been mutual credits, mutual debts or other mutual dealings,
between a debtor against whom a receiving order shall be under this Act and any other
person proving or claiming to prove a debt under the receiving order, an account shall be
taken of what is due from the one part to the other in respect of such mutual dealings, and
the sum due from the one party shall be set off against any sum due from the other party,
and the balance of the account, and no more, shall be claimed or paid on either side
respectively; but a person shall not be entitled under this section to claim the benefit of any
set-off against the property of a debtor in any case where he had, at the time of giving
credit to the debtor, notice of an act of bankruptcy committed by the debtor and available
against him."

In considering this section, which is the same as s. 31 of the Bankruptcy Act, 1914, Winn,
L.J., in Rolls Razor Limited v Cox (1), at p. 406 said:

"Notwithstanding the relative order in which the section refers first to 'credits', then
to 'debts', and thirdly to 'dealings', I am of the opinion that the proper construction of the
section and the true guide to its applicability to any particular set of circumstances involves
placing emphasis primarily on the concept of mutual dealings and consequentially regarding
the debits and credits referred to as such mutual debits and mutual credits as arise from
mutual dealings: by the triple use of the word 'mutual', Parliament seems to me subtly to
have indicated that mutuality is the dominant characteristic of the matters in respect of
which it enacted this section.What dealings are 'mutual' within the meaning of the section
appears to me to be determined by the intention of the parties to those dealings, expressed
to each other or to be inferred from the character of the dealings. Thus, the relationship of
banker and customer on a current account implies from its very nature an intention on the
part of both parties that debits and credits arising between them shall be brought into a
running account on which, by reason of the customary method of keeping such account,
there will at any given moment be an outstanding debit or credit balance. Similarly,
producers of such commodities as fruit and vegetables, who market them through selling
agents in, for example, Covent Garden, normally, if not necessarily, deal with those selling
agents on a running account in which credits in their favour will arise in respect of proceeds
of sales received by the agents, with related debits for commissions and sale expenses
incurred by the agents in disposing of the goods or making allowances for quality
deficiencies. These are only examples which could be almost indefinitely as multiplied by
taking into consideration such other relationships those of a landlord and his rent collectors,
or transactions of collection of outstanding debts. The common and essential characteristic
of all such dealings, which I regard as the type of mutual dealings contemplated by the
section, although many others less comprehensive and of shorter continuity would also be
included, is that by the intention of the parties expressed or implied, they each extend to
the other credit in respect of individual sums of money until such time as such sums are
brought into account and in the account set off against other sums, in totality, in respect of
which the other party has given credit: to be contrasted are dealings of a kind which may
occur either in isolation or within the complex of a continuous run of dealings, which are
themselves mutual, of such a kind that it is clear from their character that the parties intend
that the monetary outcome of them shall be separately settled between the parties and not
treated as a mere item on one side or the other of a running account."

In the agreed bundle of documents is a letter dated the 21st March 1975, from the
defendant to Mr Gadsden referring to an enclosed cheque for K23,003.86n that was a
payment for work done on the Pemba contract; no deduction, or reference, was made to
any claim the defendant then had arising out of the plaintiff's abandonment of the Group L
contract. Payments for work done on the Pemba contract were made monthly but no
deduction was effected for any loss under the Group L contract and the first intimation the
plaintiff received that the defendant proposed to set-off the claim it had for the loss under
the latter contract against the sum of K40,000 claimed by the plaintiff on the Pemba
contract, was on the 2nd January 1976, when Mr Gadsden received a letter dated the 31st
December 1975, some fifteen months after its abandonment. If it was the contention of the
parties that mutual dealings existed between them, the right to set-off payments due under
the Pemba contract would have been exercised far earlier than it was. I am satisfied on the
evidence before the court that it was the intention of the parties that the monetary outcome
should be separately settled and that the Pemba and Group L contracts were intended to be
and were treated as separate and distinct contracts and not as mere items on one side or
the other of a running account, and that the defendant cannot set-off its claim against that
of the plaintiff under s. 34 of the Bankruptcy Act.

The defendant is faced with a further difficulty in pursuing its counterclaim in that the right
to set-off cannot apply where money has been handed over for a specific purpose unless an
end has been put to such specific purpose by agreement between the parties. The position
is clearly stated by Lord Hanworth, M.R., in Re: City Equitable Fire Insurance Company
Limited (2), at p. 319:

"There is no doubt of the principle of set-of which was originally adopted in

bankruptcy proceedings as far back as the 4th and 5th of Queen Anne and subsequent
statutes in the reign of George II, and later, all of which are indicated in the judgment
delivered by SIR NICHOLAS TINDALL and are set out at the end of the notes to Rose v Hart
(3) in 2 Smith Leading cases (12th Edn.), p. 292. That principle has been distinctly widened
and developed. It is suggested now that it has become so wide as to embrace almost all
matters which ultimately end in a sum of money being due on the one side and the other
inter se persons who are creditors of a bankrupt or a company in liquidation. To hold that
would be to go too far. It has been quite explicitly explained in Eberle's Hotels and
Restaurant Co. v Jonas (4) (18 Q.B.D. 459 at p. 468) that the two items on either side must
be commensurable, and that where you have a claim to specific goods in detinue, and a
debt in money on the other side, you cannot have a set-off, although there are some wide
observations made in that case on which the Globe has relied. Different considerations apply
where money has been handed over for a specific purpose and not treated as a mere item
in accounts kept between the bankrupt and his creditors. Illustrations of money handed
over for a specific purpose are to be found in Re Pollitt, Ex parte Minor (5) and Re Mid -
Rent Fruit Factory (6). The effect of handing over money for a specific purpose appears
from the cases to be that it is taken out from the current accounts as between the parties,
to be held, so to speak, in suspense between them until that specific purpose for which it
had been handed over has been completed; but even then it appears that the nature and
quality of the specific purpose still attaches to the balance of the fund, if any, which remains
in the hands of the deposited, because it was originally placed in his hands for the particular
purpose, and unless and until there has been some subsequent agreement between them to
release that specific purpose the nature and quality of the specific purpose still attaches to
the balance of the fund which may remain. Indeed, in all cases it must be the balance of the
fund which is in dispute. If the specific purpose had been carried out, then there can remain
no question at issue between the parties. It is only in respect of the balance not employed
in a specific purpose in respect of which the rights of the parties to it can be canvassed with
a view as to whether a set-off applies or not. It appears plain from the cases which are cited
that where there has been a specific purpose declared there is not until the specific purpose
is put an end to by agreement between the parties any withdrawal of the specific quality or
any right of set-off which arises from the general transactions between business men.

In Re Pollitt (5) Lord Esher says this; he deals with the facts ((1893) 1 Q.B. at p. 457),
showing that a certain authority had been given for a specific purpose, and then on p. 458
he says this:

'There is this difficulty. If the money was given to the solicitor for a specific purpose,
then as between him and the bankrupt there could not be a set-off; nor as between them
could there be any mutual credit.'

Those words are clear. In Re Mid - Kent Fruit Factory (6), Vaughan Williams J., to
whom everyone would pay tribute as being a master in his knowledge of the bankruptcy
law, not only decides the case, but also adds a few words as to the law as it now stands, as
they may be useful in future cases. He had before him a case in which certain money by
several cheques had been handed over to the solicitors of a company for the payment of
specific debts. The argument was that the specific purpose had been exhausted, 'that there
was no longer any specific purpose to which the money was to be applied; and that from
that time forward the money remained in the hands of the solicitors as a debt due to the
company.' That was the argument, but VAUGHAN WILLIAMS J, holds that:

'the onus is on the solicitors to show the company's consent to the money
remaining in their hands; and I fail to find that, the consent was given or that the solicitors
ever communicated to the company that they had the balance in their hands.'

In other words, dealing clearly with the argument presented that with regard to this
balance not included for the specific purpose the quality and nature of the specific purpose
ceased, he definitely holds that it did not, because until there was an agreement or some
arrangement between the parties that the original quality of the fund should be withdrawn it
remained and attached to the balance of the fund just as it had originally attached to the
whole of the fund."

The performance bond requires the Zambia State Insurance Corporation Limited to pay to
the defendant the sum of K40,000 should the plaintiff fail to carry out its obligations under
the Group L contract, subject to the conditions stated therein. It is clear from the evidence,
however, that the performance bond was to secure the advance of the K40,000; as the
performance bond had not been issued the initial advance of K20,000 was deductible from
monthly payments made under the Pemba contract. If the performance bond had been
issued prior to the initial payment no deductions would have been made from moneys due
to the plaintiff. The retention of the sum of K40,000 from the money due under the Pemba
contract was for the specific purpose of its being security until the performance bond was
executed by Zambia State Insurance Corporation Limited and there was never any
agreement that the purpose for which it was held by the defendant was to come to an end.
The quality and nature of the specific purpose for which the money was held continued and
continues to be attached to it; there was never any consent to it being held for any other
purpose and it cannot therefore be set-off against a claim the defendant might have against
the plaintiff for damages arising from a breach of the Group L contract.

Learned counsel for the plaintiff has submitted that the counterclaim has not been proved,
that the statement of loss is too generalised and that the losses sustained might have been
sustained in any event even if the plaintiff had performed its obligations under the contract.
The fact that the loss sustained by the defendant in completing the Group L contract would
have been incurred even if the plaintiff had not abandoned the contract cannot assist the
plaintiff; if the plaintiff would have sustained a loss in completing the contract there is no
evidence to show that it would have been indemnified for such loss whether by the
defendant or the employer. If the contract could only have been completed at a lose, such
loss would have had to have been met by the plaintiff as the defendant took over the
completion of the contract, any loss suffered that would have been sustained in any event is
one for which the plaintiff must be liable.

Mr S. Vladimir said that the extent of the work undertaken in carrying out the Group L
contract was increased by about 10 per cent as a result of variations and extras ordered by
the employer. There had been an increase in the cost of materials but this was passed on to
the employer. There was no increase in the amount paid in wages.

The court is satisfied from the evidence given by Mr. Cruickshank that the defendant
suffered a loss of K266,367 after it took over the Group L contract from the plaintiff until
the date of the witness's statement, namely the 20th July, 1978. As the loss incurred by the
defendant was increased by the variations and extras by approximately 10 per cent, the
loss that would have been incurred on the contract as originally executed would have been
approximately K239,700. However there was no evidence to establish that the work done
by the defendant in completing the contract was performed in such a way that the loss
incurred was kept to a minimum and that the loss represents the correct measure of
damages for which the plaintiff is responsible.

The scheme of arrangement between the plaintiff and its creditors as sanctioned by the
court is bidding on all the plaintiff' s ordinary creditors. Various clauses of the scheme read:

"2. The rights of all Ordinary Creditors of the Company against any surety or sureties
for the debts due to them and against all persons other than the Company and all rights of
any Creditor or Creditors in respect of any security or securities which they or any of them
hold for their said debts or claims are hereby expressly reserved.
6. A Distribution Account shall be opened in the name of the Company at such bank
in Lusaka as the Committee of Management shall decide and there will be paid into such
account all proceeds of such completion and maintenance as aforesaid and all proceeds of
sale of any surplus assets of the Company and such other monies as may be available from
the profits or other income of the Company as the Committee of Management shall from
time to time determine.
7. The Company will pay from the Distribution Accounts firstly those persons or
groups of persons set out in Rule 192 of the Companies Winding Up Rules their costs and
expenses in the manner and order prescribed in that rule and secondly, all Creditors who
have preferential claims and whose debts are admitted, in the order and manner prescribed
by the Preferential Claims in Bankruptcy Act and the Zambia National Provident Fund Act
both as amended and thirdly, to ordinary Creditors as admitted.
19. On the commencement of this Scheme any Ordinary Creditor holding or
possessing any plant materials or property belonging to the Company shall return the same
to the Company and any Ordinary Creditor on whose behalf the Sheriff or his Bailiffs are
holding any plant materials or property shall instruct the Sheriff or his Bailiffs to release the
plant materials or property to the Company."

Although the scheme does not expressly stay proceedings by creditors against the plaintiff,
by its adoption the creditors have accepted its provisions in substitution of their former
rights against the plaintiff, and the defendant's recourse is in participating in the scheme
and receiving dividends for the amount due to it as provided therein, and not by way of
pursuing court proceeding for a judgment for the amount claimed. Should it transpire that
the defendant is not prevented from pursuing its loss by way of set-off and counterclaim the
court would have held that it had not sufficiently proved its loss and the counterclaim would
have been dismissed.
Judgment is entered in favour of the plaintiff for the sum of K40,000 together with interest
thereon at the rate of 6 per cent per annum from the date of the issue of the writ of
summons, namely the 11th March 1976, and the counterclaim is dismissed.

Judgment for the plaintiff

IN RE SIULUTA AND THREE OTHERS (1979) Z.R. 14 (H.C.)

HIGH COURT
HADDEN, J.
16TH JANUARY, 1979
HPBA/5/79

Flynote

Criminal law and procedure - Arrests - Arresting person for purposes of investigations about
him - Impropriety of.

Headnote

The applicants were detained while further inquiries were being made by the police. They
had not been charged with any offence. During the application for bail counsel for the
applicants submitted that it was improper for the police to detain persons while
investigations were being carried out and that it was unreasonable to refuse bail to persons
against whom no charge had been preferred.

Held:
(i) The police could only arrest for offences and has no power to arrest persons
for the purposes of making inquiries.

(ii) Having, made an arrest for a specific offence, then the police could hold the
arrested person in custody while the inquiries were being made, but if there
was enough evidence to prefer a charge, they should do so without delay.

(iii) On the evidence available, the reasons for the applicants not having been
charged were unjustified and there was a flagrant abuse of the powers
contained in s. 33 of the Criminal Procedure Code.

(iv) Bail was granted on the ground that the applicants had not been charged
with any offence when this should have been done soon after their arrest.

Editorial Note

Although the body of the judgment does not say so specifically, the court granted bail under
s. 123 of the Criminal Procedure Code.

Cases referred to:

(1) Wiltshire v Barrett, [1966] 1 Q.B. 312.

(2) R. v Houghton and R. v Franciosy, the Times, 23rd June, 1978.

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 33.

Magistrates Courts Act, 1952, (England), s. 38(4).

For the applicants: G. Chaane, Chaane & Co.

For the respondent: R. Balachandran, State Advocate.

Judgment

HADDEN, J.: This is an application by the applicants that they be admitted to bail pending
their trial.

The applicants were arrested on the 5th January 1979, on suspicion of theft or fraud of an
amount involving K56,000. They did not appear in court when the police said they would
and following representations by their advocate, they eventually appeared on the 10th.
Their detention, according to the police, was under s. 33 of the Criminal Procedure Code.
Application was then made to the court that they be admitted to bail, but the court deferred
consideration of the application to the 18th, on the ground that the applicants might
interfere with prospective prosecution witnesses.

For the applicants Mr Chaane has submitted that s. 33 should not be used to detain persons
indefinitely, that the court should have adjudicated upon the application for bail when it was
made and should not have deferred it and that the applicants were unlawfully in the custody
of the police from the 5th to the 10th January. Finally it was submitted that it is quite
improper for the police to detain persons while investigations are being carried out and that
it is unreasonable to refuse bail to persons against whom no charge has been preferred.

Learned state advocate has informed the court that accomplices are still at large and the
applicants are being detained while these other suspects are being located; that should the
applicants be permitted bail there is every likelihood that certain material documents would
go missing; that there is evidence that a cheque has already been lost or destroyed and
that it is in the public interest, in the particular circumstances of this case and bearing in
mind the amount of money involved, that the applicants be detained while the
investigations are finalised.

Although the State does not condone the delay in arranging to bring the applicants before
the court, it contends that s. 33 (1) of the Criminal Procedure Code was complied with in
that the applicants, who were not and are not accused persons, were brought before the
court; that the court thereupon remanded the applicants in custody and their subsequent
detention is as a result of a court order and not by the police under s. 31.

Lord Denying, M.R., in Wiltshire v Barrett (1), at p. 325 noted that s. 38 of the Magistrates
Courts Act 1952, which is similar although not identical to s. 33 of the Criminal Procedure
Code deals with cases where the inquiry at the police station discloses a case to be
answered and those where an inquiry cannot be completed forthwith. Lord Justice Lawton,
in R. v Houghton, and R. v Franciosy (2), said that their Lordships wished to state in the
clearest possible terms that police officers could only arrest for offences; if they thought
there was any difference between detaining and arresting, they were mistaken. They had no
power to arrest anyone so that they could make inquiries about him. Having made an arrest
for a specific offence they could hold the arrested person in custody while they made
inquiries; but when they had enough evidence to prefer a charge they should do so without
delay and comply with s. 38 (4) of the 1952 Act. The court added that the rules could hinder
the police in bringing criminals to justice and the report continues:

"Maybe the police should have power to detain for inquiries in such cases. They did
not have them at present. Parliament might have to decide whether they should have them.
The courts could not do so."

The State has openly admitted that the applicants are being detained while further inquiries
are being carried out and it is the intention of the police to charge them with an offence on
the 18th January. This shows that the State could prefer a charge but does not intend to do
so until such time as it suits their convenience.

I find this conduct on the part of the State quite improper. The Judges Rules provide that a
person should be charged with an offence, or informed that he may be prosecuted for an
offence, without delay when enough evidence to prefer a charge is available. The applicants
could and should have been charged with an offence. On the evidence available before the
court the reason why this was not done shortly after the arrest was for the reasons already
mentioned which I find to be wholly unjustified, and a fragrant abuse of the powers
contained in s. 33.

I grant the applicants bail on the ground that they have not been charged with an offence
when this should have been done soon after their arrest on the 5th January.

Each of the applicants is to deposit the sum of K500 cash with the clerk of the court before
which they are to appear; each applicant is required to obtain two sureties acceptable to the
court, no such sureties to be a surety of any other of the applicants; such sureties to enter
into recognizance in the sum of K2,000 each. The terms of bond are that the applicants will
appear before the Senior Resident Magistrate, Lusaka at 0900 hours on the 18th January,
1979, and thereafter to be subject to whatever order that court may make with regard to
the continuation of bail or the remand of the applicants in custody.

Bail granted

MARY LOUISE KAKOMA v BENSON CHITONDU KAKOMA (1979) Z.R. 17 (H.C.)

HIGH COURT
CULLINAN, J.
24TH JANUARY, 1979
1972/HP/D/50

Flynote

Family law - Custody - Jurisdiction - Child taken out of jurisdiction by wife - Whether court
has jurisdiction to deal with custody - Custody to husband without prejudice to question
regarding care and control.

Headnote
This was an application by the respondent to vary an order of custody. The parties were
married in New Zealand, subsequently they came to Zambia where the child was born. The
petitioner was granted a decree nisi of divorce and custody of the child. An application by
the respondent to vary custody was dismissed. The petitioner without leave of court took
the child out of the jurisdiction to New Zealand, hence this application. The court considered
the issues of whether it had jurisdiction in the matter and whether the order it might make
would have any effect.

Held:
(i) The court has inherent jurisdiction to deal with the custody of the child whose
parent is a citizen of Zambia and who was born within its jurisdiction.

(ii) The order made by this court could be incapable of having any effect unless
the court in New Zealand takes a similar view.

(iii) The proper course is to give the husband legal custody to enable him if he
wishes to present his case in a New Zealand court on equal terms with the
petitioner

(iv) The court can act irrespective of the fact that the courts of the country where
the child is located may also have jurisdiction to make an order. It assumes
that the other court will act in a reasonable manner both as to whether or not
it chooses to make an order and as to what order it should make; and every
effort is put forth on all sides to ensure that there should be no divergence
between the line taken by this court and that taken or 40 likely to be taken
by the other court.

(iv) Custody of the child granted to the respondent without prejudice to any
question of care or control.

Cases referred to:

(1) Harben v Harben, [1957] 1 All E.R. 379.

(2) Ronalds v Ronalds (1875) L.R. 3 P.& D. 259.
(3) Hope v Hope (1854) 43 E.R. 534.
(4) Re Willoughby (1885) 30 Ch. D. 324.
(5) Wakeham v Wakeham [1954] 1 All E.R. 434.

For the petitioner: No appearance.

For the respondent: D.M. Lewanika, Shamwana & Co.

Judgment

CULLINAN, J.: This is an application by the respondent to vary an order of custody of the
child of the family, a little girl Tanya Mulusa aged 9 years.

The parties were married in New Zealand. Subsequently they came to Zambia where the
child of the family was born on the 14th March, 1969. The petitioner was granted a decree
nisi of divorce on the 3rd September 1973, when she was also granted custody of the child.
An application by the respondent to vary custody was dismissed on the 11th September
1975. The present application has been made by the respondent in view of the fact that the
petitioner, without leave of the court, took the child out of the jurisdiction to New Zealand
on the 5th November 1976.

The first question that arises is whether the court now has any jurisdiction in the matter. In
the case of Harben v Harben (1), at p. 381 at F Sachs J., observed:

"I doubt if I need say any more on the point of jurisdiction than to thank counsel for
the wife for referring me to Ronalds v Ronalds (2), which to my mind makes it, by analogy,
clear that jurisdiction exists to deal with the present issues by virtue of s. 26(1) of the
Matrimonial Causes Act, 1950, (see now section 42 of the Matrimonial Causes Act, 1973)
and to Hope v Hope (3), the leading authority on the inherent jurisdiction of the High Court
to deal with the custody of any child who is a British subject whether by parentage or even
(as is exemplified by Re Willoughby (4)), by virtue of having a British grandfather. This
inherent jurisdiction exists even if the child is born out of allegiance, and it exists
irrespective of where the child may be physically located at the relevant times."

In the present case although the petitioner is a citizen of New Zealand, the respondent is a
citizen of Zambia and the child of the family was born within the jurisdiction. I am satisfied
therefore as to my jurisdiction. The question arises however as to what effect any order of
this court might have in the matter. In the case of Wakeham v Wakeham (a), p. 435 at A,
Sir Raymond Evershed, M.R. said:

"From the practical point of view, so long as the wife remains in the Union of South
Africa it is clear that nothing effective could in any case be done by the husband unless he
took proceedings in the courts of that country."

and again at p. 435 at H:

"I confess that any view that we expressed would be largely futile, because it would
be incapable of being made effective unless the court in South Africa should take a similar
view."

In Harben (1), Sachs, J., observed at p.381 at I:

". . . the court can act also irrespective of the fact that the courts of the country
where the child is located may also have jurisdiction to make an order. It assumes that the
other court will act in a reasonable manner both as to whether or not it chooses to make an
order and as to what order it should make; and every effort is put forth on all sides to
ensure that there should be no divergence between the line taken bythis court and the line
either taken or likely to be taken by the other court. Whether or not this court makes an
order in relation to a child outside the jurisdiction depends on the particular facts of the
case, but of course, those facts have to be really exceptional before an order is made."

In Wakeman (5), the petitioner husband was granted a decree nisi and also legal custody of
the two children of the family, one of whom, a five-year-old boy, had been taken by the
respondent wife out of the jurisdiction to South Africa some three years earlier contrary to
her promise to her husband in the matter. The order for custody was subsequently varied,
the wife obtaining custody of the latter child. On appeal by the husband to the Court of
Appeal, Sir Raymond Evershed M.R., observed at p. 436 at A:

"I think that the proper course is to let the original order in this respect stand,
namely, to let the husband have the legal custody of the child, but to make it clear - and in
the circumstances of this case I think it should be made clear by express statement in the
order that the order as to custody is without prejudice to any question as regards the care
and control of this child. If, then, the husband chooses to make an application to the South
African courts, the matter will, no doubt, be considered by those courts on its merits, but
the husband will not, at any rate, start with the unfair disadvantage that it would be said:
'The courts in England have said that the mother ought to have the legal custody of this
child'."

Again, Romer, L.J., at pp. 436/437 at H said:

"We are now being asked to put the husband into a position in which he can
approach, on terms of equality with his former wife, the South African courts if any question
in regard to the welfare or control of the child comes up for determination. As the matter
stands at the moment, the wife having the legal custody as well as the physical control of
the child, I take the view that the husband would be gravely prejudiced, and in a difficult
position in regard to the South African courts, if, in the face of that order, he made an
application which he might well make to them on some matter affecting the child. Today we
are merely removing that disadvantage and putting him on equal terms with the wife in any
application that may be made. Counsel for the wife said that if we made the order which my
Lord has indicated it would be giving the husband an advantage over the wife, but I do not
take that view. The words which are to be put into the order, 'without prejudice to any
question of care or control', will and plainly are intended to leave the matter open, and will
no doubt, receive that interpretation in the South African courts."

In the present case an order for custody was made in favour of the petitioner; an
application to vary that order was subsequently dismissed. The situation has now altered
however. The petitioner has taken the child of the family out of the jurisdiction without
leave of the court. Mr Lewanika for the respondent submits that the petitioner is in
contempt and should not be heard by this court - until she purges herself thereof. The
petitioner's advocates in New Zealand have sent to the court an affidavit sworn by the
petitioner: they subsequently addressed a letter to the respondent's advocates however, in
which they indicated that they now consider that the petitioner is not amenable to the
jurisdiction of this court, so that I can only regard her affidavit, which deposes to a belief in
the authenticity of a threat to deport her from Zambia, as directed towards an attempt to
explain such contempt.

I consider the circumstances of this case to be exceptional. I under stand that the
respondent wishes to take the matter before the courts of New Zealand. In such
circumstances I consider that the respondent should at least be put on equal terms with the
petitioner. I propose to make an order in the form adopted by the Court of Appeal in
Wakeham (5). I order therefore that the respondent be granted the custody of the child of
the family Tanya Mulusa Kakoma without prejudice to any question of care and control of
the said child.

Order for custody to respondent

ERNST KARL PAUL LEMBE v KEARNEY AND COMPANY LIMITED (1979) Z.R. 20
(H.C.)

HIGH COURT
SAKALA, J.
12TH FEBRUARY, 1979
1973/HP/182

Flynote

Criminal law and procedure - Appeals - Jurisdiction - Appeal against decision of Deputy
Registrar on a matter referred to him by judge - To whom does appeal lie.

Headnote

In this case the judge entered judgment in favour of the plaintiff and directed that damages
be assessed by the deputy registrar in chambers. The appellant was dissatisfied with the
assessment and appealed against the decision to another judge.

Held:
(i) A decision, order or direction by the deputy registrar on a matter referred to
him by a judge is made on behalf of that judge and an appeal does not
therefore lie to the same judge or to a judge of the same jurisdiction.

Legislation referred to:

High Court Rules Cap 50, O 30, r 10 (1)

Supreme Court Rules, 1976 (England) O. 58, r 2

For the plaintiff: C.D. Mabutwe, Shamwana & Co.

For the defendant: F.M. Jere, Gib Chigaga & Co.

Judgment

SAKALA, J.: The appellant has applied to this court, for extension of time within which to file
a notice of appeal to a judge in chambers.

The notice in part reads as follows:

"Take notice that Kearney and Company Limited being desirous of appealing against
the ORDER of Assessment given by the Acting Deputy Registrar Mr K.A. Chishala on 28th
September, 1978, HEREBY GIVES NOTICE OF APPLICATION for an extension of time within
which to give Notice of Appeal to a Judge in Chambers against the said ORDER of
Assessment for the reasons and upon the following grounds . . ."

Before hearing the application, the court invited submissions on a point of procedure
namely, whether an appeal from the assessment of damages by the deputy registrar lies to
a judge in chambers or direct to the Supreme Court. I raised this point because after going
through the history of the case, I observed that on the 4th August 1977, Mr Justice Bweupe
after entering judgment in favour of the plaintiff directed that damages be assessed by the
deputy registrar in chambers. The deputy registrar assessed the damages. The appellant
was dissatisfied with that assessment and has appealed to this court against the
assessment. If the application for the extension of time is allowed, what it means in effect is
that, this court will have to hear an appeal against the decision of the deputy registrar on
assessment of damages referred to him by a court of the same jurisdiction as this court.
On behalf of the applicant, Mr. Jere submitted that the application was properly before the
court in accordance with the provisions of O. 30, r. 10 (1), of the High Court Rules, Cap. 50.
On the other hand, it was contended by Mr. Mabutwe that O. 30, r. 10 (1) is silent as to
what matters are subject of appeal to a judge in chambers from the registrar. He submitted
that in the light of the provisions of O. .58, r. 2, of the 1976 ed. of the White Book, an
appeal against assessment of damages lies only to the Supreme Court. Order 30, rule 10
(1), reads 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. An appeal from the decision order or direction of the
Registrar shall be no stay of proceedings unless so ordered by a Judge or the Registrar."

It will be observed that the most significant words are- "Any person affected by any
decision, order or direction of the Registrar may appeal therefrom to a Judge at chambers. .
."

In the instant application, the appeal is against the decision of the deputy registrar made
after the maker was referred to him by a judge. There is no suggestion that the judge had
no jurisdiction to assess damages. The High Court (judge) has jurisdiction to assess
damages. It follows in my view that a decision, order or direction made by the deputy
registrar on a matter referred to him by a judge is made on behalf of the judge and hence it
is the decision or order of the judge who referred the maker to him. While O. 30, r. 10 (1),
of Cap. 50 may be said to be wide, it would in my view be a contradiction that a decision
made by the deputy registrar on behalf of a judge should be appellable to the same judge
or court of same jurisdiction. While O. 30, r. to (1), may not be of great assistance on the
point, this court is in my opinion entitled to seek assistance from O. 58 (2) of the 1976 ed.
of the White Book by virtue of s. 10 of Cap. 50 which entitles the High Court to conform to
the law and practice observed in the High Court of justice in England in case of default in
our law. The practice in England according to O. 58 (2) of the Supreme Court rules is that
an appeal from the judgment, order or decision of the master is to the Court of Appeal. Part
of the comments on O. 58 at p. 835 of the 1976 elf. of the White Book reads as follows:

"The effect of para. (1) is that appeals from all judgments, order or decision of a
Q.B. Master in all causes, matters, questions or issues tried before or referred to him lie
direct to the Court of Appeal. The words 'hearing or determination' refer to a proceeding
which results in a final, as opposed to an interlocutory in character is made after the trial or
hearing of an action or assessment of damages has begun before a Master and during the
course of such trial or hearing, e.g., grant or refusal of leave to amend, it is submitted that
the appeal against such order will lie to the Court of Appeal as part of an appeal against the
final order or judgment, for otherwise it would be anomalous that the appeal in such
circumstances against the interlocutory order should lie to the Judge in Chambers and the
appeal against the final order to the Court of Appeal."

In the present appeal, I told the opinion that on this preliminary point, this court has no
jurisdiction. Accordingly I decline to entertain the application on the ground of lack of
jurisdiction.

Application refused
MAKETO AND 7 OTHERS v THE PEOPLE (1979) Z.R. 23 (S.C.)

1. DONALD MAKETO
2. DONALD KNIFE
3. WILLARD MOFYA
4. CLAUDIOUS MAVUKA
5. ROBERT CHILANGWA
6. TRYWELL CHISI
7. SIMON CHUNGWA
8. ANDREW SAMPONGO

SUPREME COURT
SILUNGWE, C.J., GARDNER AND BRUCE-LYLE, JJ. S.
13TH JUNE, 1978 AND 16TH JANUARY, 1979
S.C.Z. JUDGMENT NO. 5 OF 1979

Flynote

Evidence - Confession statement - Confession by accused incriminating other co-accused

jointly charged with him - Effect of.
Evidence - Confession - Uncorroborated confession - Whether conviction could be based on
confession alone.
Criminal law and procedure - Parties to offences - Aiding and abbeting - Presence during
commission of crime - Whether constitutes encouragement.

Headnote

The eight appellants all, police detectives were convicted of manslaughter. It was alleged
that all of them jointly caused the death of Sailota Manda.

The appellants had all participated in interrogating the deceased but it was proved that not
all had been present throughout the interrogation. The deceased was assaulted while in
police custody and medical evidence established that he died of injuries consistent with
having been caused by a blunt linear object such as a stick, hose pipe or strap. Al made a
confession statement admitting the use of a hose pipe and incriminating all the other
appellants. However the other appellants made non-incriminating statements.

The trial judge found Al guilty of the offence and held that the other appellants had aided
and abetted Al.

On appeal the court considered the following issues: (1) Whether the incriminating
confession statement made by Al could be evidence against the other appellants jointly
charged with him; (2) Whether a conviction could be based on the uncorroborated
confession statements alone; (3) Whether on the facts the appellants were aiders and
abettors in the crime.

Held:
(i) An extra-curial confession made by one accused person incriminating other
co-accused is evidence against himself and not the other persons unless those
other persons or any of them adopt the confession and make it their own.
 (ii) A conviction can be based on a well-proved uncorroborated confession;
Hamainda v The People (4), disapproved.

(iii) In order to establish aiding and abetting on the ground of encouragement, it

must be proved that the appellants intended to encourage and wilfully
encouraged the crime committed. Mere presence at the scene of crime even
though non-accidental does not per se amount to encouragement.

Cases referred to:

(1) R. v Baldry (1852) 2 Den Cr. 430.

(2) Banda v The People, CAZ Judgment No. 15 of 1968.
(3) Amishi Banda and Anor v The People, S.C.Z. Judgment No. 41 of 1970.
(4) Hamainda v The People (1972) Z.R. 310.
(5) R. v David George Clackson and Ors (1971) 55 Cr. App. R. 445.
(6) R. v Coney (1882) Q.B.D. 534.

For the appellants: N.M. Liswaniso, Liswaniso & Co.

For the respondent: R.G. Patel, State Advocate

Judgment

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

The eight appellants - all police detectives were each convicted on one count of
manslaughter, contrary to s. 199 of the Penal Code. The particulars of offence were that on
20th March 1976, at Luanshya, all the appellants, jointly and whilst acting together,
unlawfully caused the death of Sailota Manda. Hereinafter the appellants will be referred to
as A1, A2, A3 et cetera, and Sailota Manda as the deceased.

In the afternoon of 19th March 1976, A1 sent a message to the deceased at the latter's
place of work, in which the deceased, a suspect, was asked to call at the Roan Antelope
Police Station for the purpose of being interviewed in connection with a double murder case
that had occurred on or about 26th August 1975, at Luanshya. The deceased went to the
police station during the same afternoon as requested. When A1 saw the deceased he said
he would interview him on the following day as he was already engaged on other duties. He
then alerted the other seven appellants to be ready for the interview at 0800 hours on the
following day. The deceased was not allowed to return to his home, indeed he was lodged in
a police cell at the Roan Antelope Police Station. At 0800 hours on the following day, March
the 20th, the interrogation of the deceased commenced; A1 being the Criminal Investigation
Officer was at the head of the interrogation team. The interrogation lasted for some thirty to
forty-five minute. When A1 and his colleagues realised they were making little or no
headway in their effort to obtain information from the deceased, A1 decided to adjourn the
interrogation to the following day, March the 21st. He then instructed A3 to convey the
deceased back to the police cell; A3 duly complied with the order. At about 1400 hours on
that day, the deceased was found dead in his cell. His body was later conveyed to the
hospital where the death was confirmed. A post-mortem examination was conducted by Dr
Howell who gave the 45 cause of death as being peripheral vascular failure or shook due
to multiple injuries. The injuries sustained by the deceased were concealed by the clothes
that he was wearing. These injuries were mainly confined to the trunk of the body and
consisted of linear abrasions to the chest, thighs and legs. In the doctor's opinion the
injuries were consistent with having been caused by a blunt linear object such as a stick, a
hose pipe or a strap. The doctor denied in cross-examination a suggestion that the
deceased could have sustained these injuries as a result of a fall since fall could have
caused circular injuries rather than linear ones, he also denied a suggestion that death could
have been due to the deceased's heart condition on the ground that a microscopic
examination of the heart had revealed nothing abnormal.

Shortly after the deceased's death senior police officers mounted investigations into the
matter which resulted in the arrest of all the eight appellants. Under warn and caution all of
them made statements to the police. A1's statement, a confession, was disputed by him at
his trial on the ground that he had made it under duress and that it was therefore an
involuntary confession. After a trial within a trial had been held the trial court ruled that the
confession had been made freely and voluntarily and that it was therefore admissible. The
statements by the other seven appellants not being confession statements were not
disputed by them and were received in evidence. Apart from the confession statement of A1
there was nothing in the prosecution evidence that directly implicated the other seven
appellants. We shall return to A1's statement.

After the deceased had been lodged in the cell on the 20th and before his death, he was
seen alive on two occasions, the last of these being about 12 noon and on both occasions he
is said to have made no complaints.

We find it convenient to deal first with the appeal by A1, the leader of the interrogation
team. When he gave evidence in his own defence, he denied that any member of his team
including himself, had subjected the deceased to any form of violence. Prior to this he had
made a confession to his immediate superior, Superintendent Mweemba, the officer in
charge of CID in Luanshya, in the presence of Assistant Commissioner Zimba. As previously
stated the confession was challenged at the trial on the ground that it had been induced by
duress and threats of dismissal if A1 did not confess. These allegations were levelled
particularly against Assistant Commissioner Zimba. After holding a trial within the trial the
learned judge found as a fact that A1 had not been subjected to any form of duress or
threats as alleged by him. The question here was simply one of credibility; he accepted the
evidence of the two police witnesses and rejected that of A1. He found that the confession
had been made freely and voluntarily, and so admitted it in evidence. Learned counsel did
not contend, and indeed there would be no basis for saying, that the trial court had erred in
admitting that confession, there being no improprieties attaching to it. In A1's statement it
was averred that the deceased had been a complainant in a robbery case that had occurred
in August 1975. Following upon the robbery the deceased had apparently been rendered
unconscious and taken to a hospital. On the day of the robbery a report was received
pertaining to the death of a female and her child. A1 took charge of investigations into that
double murder case. A brass ring belonging to the deceased was found at the scene of the
murder, and it transpired that the dead female had been the deceased's girlfriend. When
later the deceased recovered consciousness, A1 went back to the hospital in order to
interview him, but the interview could not materialise as he was still in a state of confusion.
Two further fruitless attempts were made thereafter.

A1's statement continued as follows:

"On the 10th of March 1976, I issued a notice to employers asking Mr Sailota Manda
to report at Roan Police Station on the 19th March 1976 and on the 19th March 1976 at
about 1600 hours he reported. The reason why I had not called or seen Manda for some
time was that all this time he seemed not to be normal, so this last time when I called him,
he seemed to be normal so as to stand police interrogation. On this day when he reported
he found that we were engaged on some other duties, and we could not question him, so I
ordered his detention for further questioning on charges of murder.
On the 20th March, 1976 at 0800 hours I got the suspect out of police cells and took
him into CID offices for interrogation. I Think when this man was brought into the office we
were about 4 or 5. We started questioning the suspect and meanwhile doing so some other
CID officers were arriving at intervals until all eight of us were present. At the time of
questioning him at times we used to slap him with open palms; at times we used a hose
pipe small in size. During this interrogation he at times could admit that he had beaten the
deceased woman because she had beaten him first, and when you questioned him for the
second time, you find that he changes his story, denying having beaten the woman, then at
this stage I decided to put him back into the cells.''

It is banal that an extra-curial confession made by one accused person which also
incriminates other persons, whether jointly charged with him or not, is evidence only
against himself and not the other persons unless those other persons (or any of them)
adopt the confession and so make it their own. In the present case none of A1's co-accused
ever adopted the confession; in point of fact they made their own non-incriminating
statements.

From the confession statement of A1 it emerges that not only was the deceased slapped but
he was also hit with a small hose pipe. The use of a hose pipe is consistent with the medical
evidence as to the cause of the linear injuries sustained by the deceased on that fatal day.
A1 made a clean breast of his part in the matter.

Discussing the effect of a confession statement Erie, J., said in R. v Baldry(1):

"I am of the opinion that when a confession is well proved, it is the best evidance that can
be produced."

This view was confirmed by this court in Banda v The People (2), and more recently in
Amish Banda and Anor v The People (3).

In Banda v The People (2), we had occasion to observe that:

"It is possible and proper in a proper case to convict on an uncorroborated

confession."

In the light of this we are bound to say that Hamainda v The People (4), a High Court
decision, was wrongly decided.

Having considered what weight, if any, there was to be placed on A1's confession, the
learned trial judge came to the conclusion that it was trustworthy. We are unable to say
that the learned judge erred by arriving at such a conclusion.

It was submitted by learned counsel for the appellants that after the interrogation the
deceased was seen by two prosecution witnesses when he was brought back to the cells and
he appeared to look a little tired but other than that there seemed to be nothing wrong with
him. Furthermore, counsel pointed out that when the same two police officers made routine
visits to the cell at approximately 1000 hours and later 1200 hours they observed that, in
their words, the deceased was "alright" and he made no complaints to them about his state
of health; that during the period from approximately 0930 hours until 1200 hours three
other police officers had access to the deceased, two of whom were the witnesses who said
he appeared to be "alright" whilst he was in the cell, and one of whom was not even called
as a witness by the prosecution.

There was also an absence of evidence from the doctor as to whether it was medically
possible for a person to be beaten at 0800 hours in the morning and to appear to be all
right for the next four hours ultimately to die from the beating at 1400 hours.

For these reasons it was argued that, between the time of the interrogation and the death,
any one of the three police officers could have been responsible for inflicting the injuries
which in fact caused the death.

The learned trial judge dealt with the first part of this argument by pointing out that no one
other than the appellants had an interest in interrogating the deceased, and we would agree
that, from the inception of the case months before, A1 was the one man who persistently
made endeavours to interrogate the deceased, and there is no evidence that anyone else
other than he and his interrogating team would have reason to intervene at some later
stage and inflict further wounds which would have caused the death. It is of course possible
for the three police officers in the inquiry office to have assaulted the deceased but, as we
have pointed out, they had no motive for so doing and had they done so they also would
have, had to act in concert in order to cover up each other's behaviour. The medical
evidence in this case confirmed that the injuries from which the deceased died were
consistent with his having been hit with a blunt linear object such as a stick, a hose pipe or
a strap. Al's confession statement confirmed that during the interrogation the decease was
beaten with a hose pipe. If there were to be any suggestion that it was impossible for the
deceased to appear to be all right for four hours after the initial beating and to die later
without some fresh assault, it was for the defence to raise this in cross-examination of the
expert witness. The evidence led before the court was that the deceased died from injuries
consistent with the assault admitted by A1. In the face of this evidence it would be
unrealistic to consider other possibilities about which there is no evidence. As regards A1,
therefore, the learned trial judge properly returned the verdict of guilt.

It now remains for us to consider the appeals by A2 to A8. The success or otherwise of
these appeals very much depends upon whether each one of the appellants cannot, or can,
be said to be caught by the provisions of s. 21 (1) of the Penal Code, which read as follows:

"21. (1) When an offence is committed, each of the following persons is deemed to
have taken part in communising the offence and to be guilty of the offence, and may be
charged with actually committing it, that is to say:

(a) every person who actually does the act or makes the omission which
constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or
aiding another person to commit the offence;
(c) every person who aids or abets another person in committing the offence;
(d) any person who counsels or procures any other person to commit the
offence."

All the appellants, including A1, admitted in their evidence and in their written statements
that they had participated in the interrogation of the deceased on the morning of 20th
March, 1976, by suggesting questions or whispering the same to A1.
It is common ground that not all the seven appellants (A2 to A8) were present throughout
the period of some thirty to forty-five minutes during which the deceased was being
interrogated; the appellants not so present were A2, A4, A7 and A8.

A2's evidence was that when he arrived at the CID office, he found the deceased lying on
the door crying and pleading' saying "please leave me; I am not the one who killed the
person". He saw no one beat the deceased in the office. For a while he left the once to go
and buy newspapers, and on his return to the office the interrogation was halted so that the
officers could read the papers. At the point of his return he found the deceased sitting on a
bench looking tired and sad.

Like A2, A4 was not present during the whole of the time during which the deceased was
interrogated.

A7 who had entered the office when the interrogation was already in progress found the
deceased seated on the floor appearing to be weak. He did not know why the deceased
looked weak.

A8 said he had accompanied A7 to the CID office and found the deceased seated on the
floor and looking weak. Like A7, he too did not know why the deceased was in that state.

As A2, A4, A7 and A8 were not present throughout the interrogation of the deceased it
would not be competent to draw an inference that they were present when the deceased
was hit with the hose pipe since this would not be the only inference reasonably possible.
The prosecution, therefore, failed to prove beyond reasonable doubt the case against any of
these appellants. Their appeals against conviction would succeed on this ground alone.

We must now turn to the appeals by A3, A5 and A6 who were present during the whole of
the period that the deceased was interrogated.

Learned counsel submitted on behalf of A2 to A8 that the learned trial judge had
misdirected himself when he found that these appellants had aided and abetted A1. He
argued that for the appellants to be convicted on the basis of aiding and abetting they must
have been found to have gathered for a common purpose, namely, to assault the deceased
but that there was no such evidence. In any event, he contended, apart from these officers
being junior to A1, there was no evidence to prove that they had in any way encouraged A1
to assault the deceased, as mere presence was not enough.

We agree that no evidence existed as against A2-A8 to prove that theirs were not mere
presence at the scene of the crime; it would be difficult to argue, on the facts, (ignoring for
this purpose, A1's confession as one ought to) that there was physical participation or even
verbal encouragement on the part of these appellants. It cannot be said that mere presence
unexplained is evidence of encouragement and so of guilt. In R. v David George Clackson
and Ors (5) the Court - Martial Appeal Court in England held that in order to establish aiding
and abetting on the ground of encouragement it must be proved that the deceased intended
to encourage, and wilfully encouraged the crime committed. Mere continued voluntary
presence at the scene of the commission of a crime, even though non-accidental, does not
per se amount to encouragement.

And in R v Coney (6) Hawkins, J., said at p. 557:

 "In my opinion, to constitute an aider and abettor some active steps must be taken
by word, or action, with the intent to instigate the principal, or principals. Encouragement
does not of necessity amount to aiding and abetting, it may be intentional or unintentional,
a man may unwittingly encourage another in fact by his presence, by misinterpreted words,
or gestures, or by his silence, or non-interference, or he may encourage intentionally by
expressions, gestures, or actions intended to signify approval. In the latter case he aids and
abets, in the former he does not. It is no criminal offence to stand by, a mere passive
spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a
crime. But the fact that a person was voluntarily and purposely present witnessing the
commission of a crime, and offered no opposition to it, though he might reasonably be
expected to prevent and had the power to do so, or at least to express his dissent, might,
under some circumstances, afford cogent evidence upon which a jury would be justified in
finding that he wilfully encouraged and so aided and abetted. But it would be purely a
question for the jury whether he did so or not."

It can hardly be said that A2 to A8 were voluntarily present witnessing the commission of
the crime on the basis that their presence had flown from a lawful order issued to them by
A1, their superior.

On a review of authorities, for which we are indebted to learned counsel for the appellants,
this court has to decide whether there was any evidence on which it could properly be said
that there was a unity of purpose and action on the part of all the appellants, including A1,
to subject the deceased to violence. We are satisfied that there was no cogent evidence on
which a court would properly convict A2 to A8. The appeals by A3, 5 and 6 as well as those
by A2, 4, 7 and 8 are allowed. The conviction of each one of them is quashed and the
sentence set aside.

It follows therefore that A1's appeal against conviction is dismissed.

As to sentence, the appellant was sentenced to twelve months' imprisonment with hard
labour suspended for three years plus K200 fine. This is an effective sentence of a fine only,
and we must say at once that in a case of manslaughter of this nature, where citizens of the
Republic are assaulted whilst interrogated by the police, the imposition of a fine is totally
inadequate. However, after the lapse of time which has expired since his sentence it would
be unfair to the appellant to impose the effective prison sentence which he so obviously
deserves. For this reason only we do not intend to increase the sentence and the sentence
imposed by the learned trial judge will stand.

Appeal of A1 dismissed
Appeals of A2-A8 allowed

ANDREW MABETA MAPOWA v THE PEOPLE (1979) Z.R. 30 (S.C.)

SUPREME COURT
GARDNER, BRUCE-LYLE, JJ. S. AND CULLINAN, J.S.
6TH AND 20TH FEBRUARY, 1979
S.C.Z. JUDGMENT NO. 10 OF 1979.

Flynote

Criminal law and procedure - Jurisdiction - Power to commit to High Court for sentencing
under s. 217 of Criminal Procedure Code where statutory minimum sentence outside
sentencing powers of trial magistrate.
Criminal law and procedure - Jurisdiction - Cases where statutory minimum sentence is to
be imposed - Jurisdiction to try vested in senior resident magistrates and resident
magistrates.

Headnote

The appellant was convicted of stock theft by a Class III magistrate. After conviction it was
disclosed that he had a previous conviction for the same offence and was, therefore, liable
to a statutory minimum sentence of seven years which was outside the jurisdiction of the
trial magistrate. The appellant was committed to the High Court for sentence purportedly
under s. 217 of the Criminal Procedure Code.

Held:
(i) Section 217 of the Criminal Procedure Code gives a discretionary power to a
magistrate, who is of the opinion that greater punishment should be imposed
than he has power to impose, to commit the convicted person to the High
Court for sentence.

(ii) The provisions of s. 217 do not cover cases of statutory minimum

sentences outside the sentencing powers of trial courts, and only senior
resident magistrates and resident magistrates who have such powers of
sentencing have jurisdiction to try cases where mandatory minimum
sentences should be imposed.

Case referred to:

(1) The People v Chilembe (1975) Z.R. 40

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 217.

For the appellant: Mrs F.N. Mumba, Director of Legal Aid.

For the respondent: A.H.O. Oder State Advocate.

Judgment

GARDNER, J.S.: delivered the judgment of the court.

The appellant was convicted of stock theft; the particulars of the offence being that he stole
one ox valued at K200.

The case was dealt with by a magistrate class III and, after conviction, it was disclosed that
the appellant had a previous conviction for stock theft. By the provisions of Act 29 of 1974
the appellant was therefore liable to a statutory minimum sentence of seven years'
imprisonment with hard labour. Because the trial magistrate had no power to pass such a
sentence he committed the appellant to the High Court for sentence purportedly in
accordance with s. 217 of the Criminal Procedure Code. The appellant was then sentenced
by the High Court to the minimum sentence of seven years' imprisonment with hard labour.
In the case of The People v Chilembe (1) Cullinan, J., held that s. 217 of the Criminal
Procedure Code gave a discretionary power to a magistrate, who was of the opinion that
greater punishments should be imposed than he had power to impose, to commit a
convicted person to the High Court for sentence. In that case it was held that the
provisions of s. 217 were not enacted to cover cases of statutory minimum sentences
outside the sentencing powers of trial courts and that only senior resident magistrate, and
resident magistrates, who had such powers of sentencing, had jurisdiction to try cases
where mandatory minimum sentences should be imposed. The ruling in that case has been
adopted and, in fact, a procedural direction has been given to magistrates to comply with it.

As the proper procedure was not adopted in the case before us we find that the purported
trial in the magistrates' court was a nullity. We quash the conviction and set aside the
sentence and we order that the appellant be retried by an appropriate subordinate court of
the firm class 19 to be presided over by a resident magistrate or a senior resident
magistrate.

Retrial ordered

MARIA ISABEL CUEVAS FROUFE DE v ANINDA KUMAR DE (1979) Z.R. 32 (H.C.)

HIGH COURT
SAKALA, J.
21ST DECEMBER, 1978
1977/HP/D11

Flynote

Family law - Divorce - Rehearing - Application for - When to be granted - Matrimonial

Causes Act, r. 54

Headnote

This was an application under r. 54 of the Matrimonial Causes Act, by the husband for
setting aside a decree nisi granted to his wife by the court in a divorce petition. The
husband also applied to be at liberty to file an answer and have the petition re-heard. On
the issue, as to whether a re-hearing could be ordered -

Held:
(i) It is necessary for the applicant to satisfy the court that he has a case which
he wishes to put forward and which if accepted, might well load to a different
result. The court is not bound to accept the applicant's affidavit at it's face
value, but on the other hand should not attempt to make any such
investigations of its truth, as would be appropriate at the hearing of the suit.

(ii) The court must satisfy itself that the proposed answer presents a prima facie
case to the petition.

Cases referred to:

(1) Montague v Montague [1968] P. 604.
(2) Winter v Winter [1942] P. 151.
(3) Tucker v Tucker [1949] P. 105.
(4) Owen v Owen [1964] P. 277.
(5) Stevens v Stevens [1965] P. 147.
(6) Nash v Nash [1967] 2 W.L.R. 1009.

Legislation referred to:

Matrimonial Causes Act 1969, r. 54.

For the petitioner: D. Lewanika, Shamwana & Co.
For the respondent: A.M. Hamir, Solly Patel, Hamir & Lawrence.

Judgment

SAKALA, J.: This is an application under r. 54 of the Matrimonial Causes Act by the husband
for setting aside a decree nisi granted to his wife by this court on the 26th August, 1977, in
a divorce petition. The husband also applies to be at liberty to file an answer and have the
petition re-heard. No error of the court is alleged at the hearing.

The grounds in support of the application are set out in the notice as follows:

"(i) That about since March 1977, after having been served with the petition for the
Dissolution of the marriage and other ancillary documents the Respondent had endeavoured
to persuade the Petitioner to discontinue the proceedings and reasonably thought that the
same would be discontinued notwithstanding that the Petitioner intended to pursue the
same by reason that the parties continued to occupy the same matrimonial home though in
separate bed-rooms and had on a number of occasions attended functions together;
(ii) That thereafter the Respondent received Notice of Hearing about three or four days
before the actual hearing of the petition which was set for the 22nd day of August 1977,
and he approached a firm of advocates by the name of Jacques & Partners and the day after
such receipt of Notice of Hearing approximately on the 18th August 1977, instructed the
advocates to defend the petition;
(iii) That the said advocates prepared the documentation summons to extend time and
affidavit in support of the purpose whereof was to enable the Respondent to defend the
petition;
(iv) The Exhibits 'AKD. 1' and 'AKD. 2' were being typed on the Friday preceding the date
of the hearing but the Respondent was informed by his advocate that the same could not be
filed as the High Court registry closed at three o'clock in the afternoon;
(v) That on the grounds that he had lost the opportunity of defending the proceedings in
that he had instructed his advocates to defend it before the hearing date and that the
documents could not be filed in time or otherwise."

The affidavit in support of the application after setting out the respondent's particular and
restating the grounds for the application as set out in the notice goes on to say:

"9. That I then instructed my advocate to go to Court but was instructed by Mr

Banda of Jacques & Partners that he could not go to Court as he had not filed the relevant
documents appointing himself as my lawyer in the proceedings and hence no appearance
was made in Court by my advocate nor myself;
10. That on Monday the 22nd August, 1977, my wife informed me that the case had
been adjourned to Friday the 26th August, 1977, and I immediately saw my advocate who
informed me that there was still an opportunity to file documents prepared by him and I
had the affidavit sworn by Christopher Russell Cook and Co.,
11. That I was advised by Mr Banda and verily believe that the said documents
were sent to court for filing; but with the exception of Acknowledgment of Service the
Summons and the affidavit were refused to be received by the court for filing by reason that
the court was on vacation;
12. That in consequence thereof the filing of Acknowledgment of Service was
irregular and I am advised by my advocate was properly ignored by the court;
13. That I am advised by my advocates that the proper course would have been
for an application to be made to file an answer after directions were given which application,
subject to its merits, would have caused an adjournment and I would thereafter have been
given an opportunity to file an answer and defend it on its merits;
14. That my advocate and myself attended court on a Friday 26th August, 1977,
for the date set for Judgment but my lawyer did not address the court;
15. That I deny that I have behaved in such a way that the Petitioner cannot be
reasonably be expected to live with me and the said marriage has broken down
irretrievably;
16. That annexed hereto marked exhibit 'AKD. 3' is a copy of my proposed
answer;
17. That I humbly request and pray that this court would set aside the Decree
Nisi granted on 26th August, 1977 and permit me to file an answer herein and the said
petition be re-heard."

The brief history of this ease is that, on the 23rd February 1977 the wife presented her
petition for divorce on the ground that her marriage to her husband had broken down
irretrievably for the reason that the respondent had behaved in such a way that the
petitioner could not reasonably be expected to live with the respondent. The petition was
served on the husband on the 4th April 1977. On the 12th July 1977, the deputy registrar
gave directions for the trial of the cause as undefended. On the 29th July 1977, a notice of
setting down was issued. On the 11th August 1977, a notice of hearing was issued fixing the
hearing date of the cause as 22nd August 1977, at 0900 hours before me.

On the 22nd August 1977, the hearing of the cause commenced at 1000 hours the court
having been delayed by a chamber application and lack of court room. Before evidence in
support of the petition was led, Mr Lewanika who appeared for the petitioner informed the
court that the petition was undefended. It will also be observed that up to the hearing date,
there was no acknowledgment of service on the record and no other document by the
respondent was filed. At the end of the petitioner's evidence, I reserved my judgment to the
26th August 1977.

On the 24th August 1977, at 1445 hours a document purporting to be an acknowledgment

of service in the cause was brought into my chambers by my marshal. For the purposes of
record, I put down the following note:

"Court: I am at this hour in receipt of an acknowledgment of service from the

Respondent in this matter. The acknowledgment of service bears the High Court stamps
dated 24th August 1977 and 23rd February 1977. This matter was fixed for hearing for the
22nd August 1977, and a notice to that effect was sent on the 11th August 1977, with a
copy to the Respondent. On the date of the hearing, the Respondent was not present nor
had he filed the acknowledgment of service. The judgment in this matter is now ready and
will be delivered on the 26th August 1977. The proceedings in this matter were heard as
undefended. I am unable to appreciate the logic of the Respondent in this case by filing an
acknowledgment of service two days after the proceedings have been heard.The
acknowledgment itself is most dubious in that answers to some questions are in pencil and
others typed. It is undated. Regrettably, it is signed by Jacques & Partners. I can only
presence it is a firm of lawyers acting on behalf of the Respondent. If they are, then the
Respondent or their client has not told them the truth. If they are actually acting for him, I
consider their action as an abuse of the court process in that, they should and must know
that when a matter has been set down for trial, no pleadings can be filed without leave of
court.
I hold therefore that the document purporting to be an acknowledgment of service
filed today is not such a document. In any event, I have already written my judgment based
on the petition of the petitioner supported by her evidence in open court."

It will be observed that on the 26th August 1977, before delivering my judgment, I read the
note in open court. In my judgment, for reasons clearly set out therein, I granted a decree
nisi and custody of the two children of the family to the petitioner.

On this history of the cause and on the husband's affidavit evidence, I am asked to set
aside the decree nisi, allow the husband to file an answer and order that the wife's petition
for divorce be reheard. It is also convenient to mention at this stage that the wife filed an
affidavit in opposition. The relevant paras are (5) and (6) which read as follows:

"That I am advised and verily believe that the Respondent herein has applied to the
court for leave for the petition to be reheard on the ground that there is possibility of a
reconciliation between himself and myself; That at no time had I indicated to the
Respondent that I was going to discontinue the proceedings herein and since the grant of
the decree nisi at no time had I indicated to the respondent that I was prepared to be
reconciled to him and in fact I verily believe that there is no possibility of a reconciliation
between the respondent and myself."

On the 24th November 1978, on the date of the hearing of the application, Mr Hamir
appearing for the husband informed the court that he had just received the affidavit in
opposition that very morning and had, therefore, no opportunity to make a reply. I granted
him leave to lead viva voce evidence in reply to the affidavit in opposition.

In his reply, Mr Aninda Kumar De testified that he had seen the affidavit in opposition where
his wife stated that there was no possibility of reconciliation. He told the court that in
February, this year he went out of Zambia on vacation. During this time, he stayed with his
wife and the children in his father-in-law's house in Spain for one month. He spent the
easter holiday with his wife and children in a rented three-bedroomed flat in England for
about a week. He said he did not agree with his wife that there is no possibility of
reconciliation. He said his wife has written him about getting a job in Spain. But the problem
would be one of language as he does not speak Spanish. He said his wife said she would
assist him with a job. The witness produced the letter from his wife and was marked exhibit
"D1". He also told the court that he has discussed the possibility of reconciliation with his
wife. He said his wife's response is that, he must show he means reconciliation and not just
talking. For this reason, he has decided that he stays in Spain for some time.

When cross-examined, the respondent told the court that on being served with the petition,
he made various attempts at reconciliation. He never took it serious that there would be a
divorce. But he did not manage to persuade his wife to withdraw the proceedings. He said
on the day of the decree nisi, they slept in the same bed although there was no sexual
relationship. He has made attempts at reconciliation since the decree nisi but she has said it
must be shown rather than by word of mouth. He said he went on holiday to see the
children and to persuade his wife not to be arrogant and dogmatic. He said he has applied
for a rehearing because he thinks there is still a possibility of reconciliation. He said his
wife's affidavit appears to reveal some misunderstanding as she appears to believe that he
had told his lawyer that she agreed to reconciliation. He said his wife has indicated on
telephone that she would go with him to India on holiday and she would come to stay with
him in Zambia. He said when he went to Spain, she met him at the airport and said she had
found him temporary employment for a month but he declined to take it. In re-examination,
he said after notice of hearing, he went to see a lawyer to defend the petition because he
believed he had a defence.

On behalf of the respondent, Mr Hamir argued that on receipt of the petition, the
respondent endeavoured to persuade his wife to discontinue the proceedings. But in error,
he believed that she would do so as she continued to live with him in the same house and
attended functions together. He also argued that after notice of hearing, the respondent
instructed Jacques and Partners to defend and, documents to this effect were prepared, and
an attempt to file them was made. Mr Hamir submitted that because of the failure of the
respondent's advocate to act promptly and properly when in a position to do so the
respondent lost an opportunity and was denied an opportunity to put forward to court all
relevant facts on which to decide whether a decree nisi be granted or not.

On the question of rehearing, Mr Hamir referred the court to pages 638 to 640 of Rayden on
Divorce, Volume One, 12th edition where a number of cases are cited in which applications
have been granted or refused. Mr. Hamir submitted that what is being applied for is not that
the petition should not be granted but that the court give consideration to all the matters
which can only be done if the respondent is given an opportunity to be heard why the
marriage has not broken down irretrievably.

On behalf of the petitioner, Mr Lewanika argued that the only ostensible purpose of this
application is to give the respondent a hearing of what is contained in the petition. He
contended that the court will have to consider that the respondent is a professional man and
not an illiterate. He was served with the petition on the 4th April 1977. He must have read
and understood the relevant documents. Mr. Lewanika submitted that on the evidence that
was before the court in the divorce proceedings and also before the court in this application,
there would be no benefit in the petition being reheard bearing in mind that it is not the
duty of the court to preserve the marriages where the whole stratum has been removed.

I have very carefully addressed any mind to the evidence before me. I have also fully
considered the arguments and submissions by both learned counsel. Several documents
were exhibited in support of the application, among them was the answer to the petition. It
is therefore significant that I make it clear at this juncture that my primary concern is not
the merit of the answer to the petition, but the merits of the case put forward for rehearing.
The issue, therefore, is not whether the respondent has a good defence to the petition or
not.

The first question for consideration is whether the respondent after his persuasion of his
wife to discontinue the proceedings reasonably believed that she would do so. The
husband's argument is that, because they lived in the same home although not in the same
bedroom and because they attended functions together, he believed in error that she would
discontinue the proceedings. In his own evidence, the respondent admits that he did not
manage to persuade his wife to withdraw the proceedings. Speaking for myself, I find no
basis for any error. The respondent Is a professional man. He received the petition for the
dissolution of marriage including a notice of proceedings as well as the acknowledgment of
service and other documents some time in April 1977. These documents speak for
themselves. The least the respondent would have done in my view was to acknowledge
service which he did not do. The wife, according to the respondent's own evidence slept in a
separate bedroom. In those circumstances, taking into account the allegations against the
respondent as contained in the petition, it does not strike me as odd for the wife to have
attended functions with the respondent perhaps out of fear. In any case, if she continued to
sleep in a separate bedroom, there was no basis in my view for believing that she would
discontinue the proceedings. There is no evidence that the wife agreed to discontinue the
proceedings. I am therefore satisfied on the evidence before me that there was no basis for
the husband to believe that the wife had abandoned or was abandoning the divorce
proceedings. If there was an error in believing that his wife would abandon the proceedings,
then the error was wholly self-induced by his reluctance to accept that his marriage was
breaking up. In the case of Montague v Montague (1) an application For rehearing was
granted to the husband mainly on the evidence the wife had lulled the husband into a false
sense of security prior to the hearing and had not given him reasonable opportunity to get
the suit stayed. This case is distinguishable from the instant one. I find noticing done by the
wife which would be said to have lulled the respondent into a false sense of security.

It will, however be observed that in Montague case (supra) the application was granted
despite the fact that the husband had specifically indicated to the registrar that he did not
wish to defend the suit. There was no such indication in the present case. But the evidence
suggests that after the husband received the notice of hearing, he instructed a firm of
lawyers to defend the petition. But the lawyers did not only act impromptly but prepared
and served incorrect documents while filing the correct one irregularly.

In these circumstances, it is submitted that the respondent was denied an opportunity to

put forward the relevant facts for the court to decide whether the marriage had broken
down irretrievably on the ground that the respondent had behaved in such a way that the
petitioner cannot reasonably be expected to live with him.

I said earlier that the issue in this application is not whether the respondent has a good
defence to the petition. That is a matter for consideration when the petition is reheard if this
application is granted. There is an abundance of English authorities where applications for
rehearing have been granted and refused. (See the notes at pp. 638 to 639 of Rayden on
Divorce, Volume one 12th edition.) A mention of a few of these may provide some good
guidance.

In Winter v Winter (2), a Divisional Court held that if there was good reason to believe that
the matrimonial offence upon which a decree nisi had been founded had never in fact been
committed, the decree nisi ought to be set aside even if the respondent had stood by and
with full knowledge of what was happening allowed the decree nisi to be made without any
resistance. This case was considered and distinguished in Tucker v Tucker (3). The facts of
the Tucker case from the headnote are as follows: In January 1948, a husband petitioner
filed a petition for divorce on the ground of cruelty. The petition was duly served on the
respondent by registered post, and she completed and returned the memorandum of
appearance. In that memorandum she stated that she did not wish to answer the petition,
but wished to be heard as to costs (which were not in fact claimed) and alimony. She was
informed of the date of the hearing; but she was neither present nor represented when a
decree nisi was pronounced on the prayer of the petitioner on 3rd June 1948. On 12th July
1948, however, she gave notice of motion as a poor person to set that decree aside,
alleging that in December 1947, the petitioner had condoned the cruelty alleged and that,
although she had applied for a poor person's certificate before the hearing, that certificate
was not issued until after the decree nisi had been pronounced. It was held that on the
material before it the court had no good reason to believe that the husband had wrongfully
succeeded in his suit, and that it was not in the public interest to order a re-hearing. Winter
v Winter (2), was considered and distinguished. Pilcher, J., in Tucker case pointed out that
the court will consider whether the new matter put forward so changes the complexion of
the cause as to satisfy the court that on that material the order originally made would, or
probably would, have been different.

In Owen v Owen (4), Scarman, J., at p. 284 has a passage described as "illuminating" by
Cairns, J., in Montague (supra). It is convenient to set out the whole passage which reads
as follows:

"We think that today the justification for the existence of the court's power to order a
rehearing is the public interest and that its exercise should be governed primarily by that
consideration. The true nature of the public interest is, as Pilcher, J. remarked in Tucker v
Tucker, to see that in matrimonial matters, where questions of status are involved any
order made by the court is made upon the true facts. Certainty is not without the power of
the court to achieve; but it must be satisfied that there are substantial grounds for the
belief that a decree has been obtained contrary to the justice of the case before it takes the
serious step of setting aside an order of the court obtained by due process of law. It is, we
think, in this context that the conduct of the parties has to be considered. If the court is
satisfied that there are substantial grounds for believing the decree to have been obtained
contrary to the justice of the case, not even gross laches by the applicant as in Winter v
Winter, nor deliberate suppression of documents as in Peck v Peck will defeat the
application. But if a respondent in possession of her faculties, with the facts of her married
life in mind, and with the benefit of clear legal advice and her solicitor's explanation of the
issues involved, takes a deliberate decision not to defend or not to negative any suggestion
of "hoodwinking" the court, then this Court, should, in our opinion, view a subsequent
application for a new trial with a degree of reserve. A decision thus taken would, in our
view, throw doubt upon the case subsequently put forward that a decree has been obtained
contrary to justice. Further, if the case sought to be advanced is cruelty (with its
concomitant that the matrimonial cohabitation has become unendurable) and there is a
recent history of attempts by the applicant at reconciliation, her complaints of cruel conduct
must inevitably be viewed and assessed in the light of such attempts. The question thus
arises as to the way in which it is proper for the court to deal with and assess, evidence
adduced in applications under this rule. Both members of the court touched upon the
subject in Tucker v Tucker. Although their choice of language differed, both accepted that
the court had to cone to a conclusion whether or not there was material upon which it was
reasonable to suppose that a decree had been obtained contrary to justice. Hodson, J'.,
after stating the test, added these words: "that is, material put forward by the applicant,
and assuming in the applicant's favour that all she is accurate." We do not think that the
judge intended these words to be of universal application; indeed he himself disregarded
them when dismissing from consideration the applicant's sworn denial of cruelty. We think
that the judge had in mind that the hearing of the application is not the hearing of the suit,
and that the Divisional Court cannot investigate or decide questions of fact which would
arise upon the new trial, if granted. But the Divisional Court must assess and weigh the
material adduced in all its surrounding circumstances and against the background of the
matrimonial history so as to reach its conclusion as to the reasonableness of believing that
injustice may have been done. In our view, Hodson, J. is not to be taken to be laying down
that in every matter the ipse dixit of the applicant, even when weighed as to its probability
against its surrounding circumstances, must be accepted. There were some preliminary
matters which of necessity lie exclusively within the province of determination of this court.
For instance, in the present case the court must make up its own mind as to the nature and
clarity of the explanations and advice given to the applicant by her solicitors in April and
May 1963, and as to her mental fitness to understand her problems and make her decisions
at that time. Were the court undecided after reading the evidence on such questions, it
would be wrong, in our view, merely to assume that the wife's version of the relevant facts
was correct: the court must decide them for itself and may, if it thinks it necessary order
cross examination of the deponents, as was recently done in Jakeman v Jakeman and
Tucker."

In Stevens v Stevens (5), at p. 162 Davies, L.J., had this to say:

"As it seems to me, this application to the Divisional Court fall into at least two
classes. There is the class where the applicant comes along and says: 'was not served I
know nothing about it,' or 'I was deceived, all the proceedings took place behind my back.'

In that sort of case the applicant obtains a rehearing almost automatically. The other
class is the Winter class of case, the Tucker class of case, and this class of case, where an
applicant may come along and say: 'I knew all about this: I chose not to defend; but it was
all wrong; let me defend now and grant me a rehearing.' In a case of that latter kind,
speaking for myself, I think that for an applicant to succeed he had to convince the
Divisional Court, or this court if it comes before this court, that on the evidence before the
court on the application as a whole it is more probable than not that the decree was
obtained contrary to the justice of the case."

Also on the point is another recent case of Nash v Nash (6). The facts from the headnote
are that a wife petitioned for divorce on the grounds of cruelty and desertion. The husband
signed the acknowledgment of service and consulted a solicitor, who made an application
for legal aid on the husband's behalf to enable him to defend. The husband successfully
appealed from the decision of the Legal Aid Committee refusing aid to the Legal Aid Area
Committee, whose decision, allowing the appeal did not reach him until at the earliest the
day before the wife's petition was heard as an undefended suit and a decree granted in her
favour.

On an application by the husband under the Matrimonial Causes Rules 1957, s. 36 (1), for a
re-hearing: It was held that where a respondent in divorce proceedings was aware of and
was anxious to defend those proceedings and, although no deception had occurred, he was
unaware, through ignorance or lack of full advice, of the necessity of taking procedural
steps in order to preserve his position, a rehearing should not be granted automatically nor
on the other hand, should the court require to be satisfied that on a re-hearing a different
result would be more probable than not; it was sufficient that the applicant should satisfy
the court that he had a case which, if accepted, might well lead to a different result. That
the applicant in the present case had so satisfied the court and the decree nisi should be set
aside and a rehearing ordered.

In Montague case (supra), Cairns, J., after considering, explaining, and distinguishing the
various authorities referred to above had this to say at p. 615:

"The effect of the cases I have referred to in relation to this present application may,
I think, be summarised as follows: We must first decide whether the husband was deceived
into believing that the divorce was not going on until a moment when it was too late for him
to have a reasonable chance of defending it. This is a question of fact to be decided on the
evidence we have read and heard. If he was so deceived, then he is entitled to have the
decree nisi set aside and a rehearing ordered unless it is clear that the rehearing would in
all probability have the same result as the original hearing. If, however, he was not
deceived but deliberately allowed the decree nisi to be made without any effort to resist it,
then he can only have it set aside if there is a probability of a different result being achieved
on a re-hearing. We should have to assess this probability on the basis of the in formation
before us but without attempting to decide the issues of cruelty and condonation, as to
which we have ruled that evidence could not be given at this stage. If on one or other of
these bases it appears that the husband would, if he had applied promptly, have been
entitled to a rehearing, then we must go on to consider whether he should be allowed to
apply out of time. Logically this question may be said to arise at the beginning of the
inquiry instead of at the end, and indeed in many cases we so deal with it, but in a case
such as the present one it is, I think, appropriate to see what merits there are in the case
put forward for a rehearing and only if these appear to be substantial to entertain the
application for an extension of time."

In the instant application, the respondent was within time. The question of extension of
time did not arise. The actual hearing of the application took some time because shortly
after the decree nisi was granted, the petitioner left the country and counsel was not able to
obtain instructions. As a result, the matter had at one stage to be adjourned sine die with
liberty to restore.

At this stage, it is also relevant to observe that all the authorities I have cited on the issue
of rehearing were decided before the 1973 Matrimonial Causes Act and pre 1977
Matrimonial Causes Rules. I must hasten to mention that during my research the latest case
I was able to find on the point is Montague v Montague (1). Be that as it may, although the
Matrimonial Causes Act of 1973 made amendments to the law relating to grounds of
divorce, the 1977 Matrimonial Causes Rules introduced no change with regard to
applications for rehearing. Rayden on Divorce, Volume One, 12th Ed. makes mention at p.
639 that the new divorce law under which decrees are granted only on proof of irretrievable
breakdown of marriage must be borne in mind when drawing analogies from cases, where
rehearing was granted. This being the position, I am of the view that the underlying
principle governing applications for rehearing has not changed.

Turning to the application itself, I am satisfied that this is not a case of deception. On the
ground of deceit therefore the respondent cannot be entitled to have the decree nisi set
aside and rehearing ordered. According to the evidence, the respondent did not seek the
services of a lawyer until he received the notice of hearing. In most of the authorities in
which the application for re-hearing was granted, the applicants had sought the services of
a lawyer and had indicated intentions not to defend (See the latest case of Montague). The
principle whether an application for rehearing shall be granted where no deception exists
was stated by Cairns, J., in Montague at p. 615 when he said: "If however he was not
deceived but deliberately allowed the decree nisi to be made without any effort to resist it,
then he can only have it set aside if there is a probability of a different result being achieved
on re-hearing." It is also pointed out in that case that the assessment of the "probability" is
based on the information before the court.

Having considered the evidence before me, I am satisfied that the respondent from the time
he received the petition to the time of receipt of notice of hearing deliberately did not way
to acknowledge service of the same and did not consult any lawyers. But on receipt of the
notice of hearing, he appears to have made frantic efforts to seek legal advice.
Unfortunately, his lawyer did not only not act promptly but did not take up proper
procedural steps to preserve the respondent's position. As a result, the acknowledgment of
service was irregularly filed. In these circumstances, if one had to make any criticism it
would only be fair not to direct them only to the advocate (not the present one) but also the
respondent. The facts of the present application comes close to a class contemplated by
Cairns, J., in Nash v Nash case (supra) when he said at pp. 1013 to 1014:

"I agree and add only a few words about the passage which my Lord has cited from
the judgment of Davies, L.J. in Stevens v Stevens. I notice that in that passage the Lord
Justice says: 'As it seems to me, these applications to the Divisional Court fall into at least
two classes.' I think there is probably at least one more class. That is the type of case
where the respondent in divorce proceedings is aware that the proceedings are in progress
and is anxious to defend and although no sort of deception had occurred, nevertheless,
through ignorance or lack of full advice he is unaware of the necessity of taking procedural
steps in order to preserve his position and has no knowledge of the actual hearing until after
it has taken place. In such circumstances, I am of opinion that this court should not
automatically or almost automatically grant a rehearing but on the other hand should not
require to be satisfied that, if there were a rehearing, a different result would be more
probable than not. I think it is necessary and sufficient that the applicant should satisfy the
court that he has a case which he wishes to put forward and which, if accepted, might well
lead to a different result. The court is not bound to accept the applicant's affidavit at its face
value, but on the other hand should not attempt to make any such investigations of its truth
as would be appropriate at the hearing of the suit."

The respondent was aware of the divorce proceedings. But through lack of full legal advice,
he was unaware of the necessity of taking procedural steps in order to preserve his position.
When he learnt of the date of hearing, he had only few working days interrupted by a
weekend within which to seek legal advice. In such circumstances, speaking for myself, I
entirely agree with Cairns, J., in the passage just quoted above that a court should "not
automatically, or almost automatically, grant a rehearing but on the other hand should not
require to be satisfied that if there were a rehearing a different result would be more
probable than not." Cairns J's, test in applications of this nature in my opinion makes not
only good sense but good law. Applying that test to the facts of the present application, the
question I must finally resolve is this:

Has the respondent on the clear evidence of lack of deception on the part of his wife
sufficiently satisfied the court that he has a case which he wishes to put forward and which,
if accepted might probably lead to a different result?

The evidence before me has been by way of affidavit. The danger in applications of this
nature is that, in the process of analysing the affidavit evidence the court may
inadvertently find itself dealing with the actual rehearing of the petition. Be that as it may, I
hold the view that the court is entitled to look at the proposed answer and satisfy itself that
it presents a reasonable prima facie case to the petition.

The decree nisi was granted on the basis that the marriage had broken down irretrievably
on the ground that the respondent had behaved in such a way that the petitioner could not
reasonably be expected to live with the respondent. The respondent denies in his affidavit
and proposed answer that he has behaved as alleged and that the marriage has broken
down. He deposed that he endeavoured to persuade his wife to discontinue the proceedings.
In the exhibited proposed answer he alleges provocation and contends that he reasonably
believes that the petitioner will reconcile. In opposition, his wife deposed that she never
indicated to the respondent that the proceedings were going to be discontinued and at no
time did she indicated that she was going to be reconciled to him. She verily believes that
there is no possibility of reconciliation.

The respondent categorically stated that he was making this application because there is a
possibility of reconciliation. He cited instances where he stayed with his family in Spain and
England. He also told the court that his wife has indicated to go with him to India on holiday
and stay with him in Zambia. On this evidence has the respondent established a reasonable
prima facie case which if substantiated at the hearing if the application is granted would
lead to a different result?

I must confess that my task in the instant case has not been easy especially taking into
account that the respondent is a professional man and also bearing in mind "the unwisdom
and public disadvantage of allowing orders of the court obtained by due process of law to be
lightly set aside . . ." [Per Hodson, J., in Owen v Owen (supra) ]. I have on the other hand
very carefully considered the evidence before me. I find that although the respondent is a
professional man, he is not a lawyer. I have also from all the material adduced found that
the respondent although did not seek legal advice promptly, he did not make a decision not
to defend. His primary concern was to persuade his wife to discontinue the proceedings
without being aware that there was at the same time need to preserve his position in the
matter. I take the view that the respondent did not appreciate the best course in the
matter. In my opinion, the respondent's prompt action to seek legal advice when he realised
that persuasion was hopeless, and there was no time to spare, coupled with his denial of
the alleged behaviour and his persistent attempts and strong belief in reconciliation, coupled
with his wife's conduct after the decree nisi; lead one to an irresistible conclusion that the
conduct of the respondent should not be allowed to affect the real issues in the cause. In
addition the evidence seems to me to change the complexion of the cause that injustice
might result in denying the respondent an opportunity to be heard. On the balance of
probabilities, I am satisfied and hold that there respondent had proved a reasonable prima
facie case which if accepted at the rehearing might well lead to a different result.

In conclusion, I am of the view that in the interest of justice, I should grant this
application. Accordingly, I order that the decree nisi granted by this court on the 26th
August 1977, be set aside. A re-hearing is accordingly ordered and the respondent is
granted liberty to file the answer. Costs to be paid by the respondent.

Application granted

DANIEL CHIZOKA MBANDANGOMA v THE ATTORNEY-GENERAL (1979) Z.R. 45

(H.C.)

HIGH COURT
HADDEN, J.
23RD FEBRUARY, 1979
1976/HP/768

Flynote

Damages - Quantum - False imprisonment - Plaintiff detained, released on police bond and
required to report to police on four subsequent occasions.
Criminal law and procedure - Arrests - When can be effected .
Criminal law and procedure - Police bond - Use of for investigations Impropriety of.
Headnote

The plaintiff was detained on the 24th December 1973, and released shortly thereafter on
police bond. He was however required to and did report to the police and at court on at
least four subsequent occasions when he was eventually told that further proceedings were
being discontinued. The attendance to the police had been arranged to coincide with the
occasions when the police wished to see the plaintiff for purposes of investigations.

Held:
(i) In order to justify the arrest of the plaintiff the defendant must show that at
the time of the arrest, the arresting officer had reasonable suspicion that the
plaintiff had committed the offence with which he was charged.

(ii) The arrest of the plaintiff was unlawful. The police can only arrest persons for
offences and have no power to arrest anyone in order to make inquiries about
him.

(iii) It is improper for the police to detain persons pending further investigations
without bringing them before court as soon as practicable, but it is equally
improper to require persons released on bond to present themselves at the
police station for the same purpose.

(iv) An award of K750 for unlawful imprisonment would be given.

Cases referred to:

(1) Wiltshire v Barrett, [1966] 1 Q.B. 312.

(2) Shauban Bin Hassien and Others v Chong Fook Kan and Another [1969] 3 All E.R.
1626.
(3) R. v Houghon and R. v Franciosy, The Times, 23rd June, 1978.

Legislation referred to:

Criminal Procedure Code, Cap. 160 s. 33.

Magistrates Courts Act, 1952 (England) s. 38 (4).

For the plaintiff: N. Kawanambulu, Shamwana & Co.

For the respondent: R.C. Nzerem, State Advocate.

Judgment

HADDEN, J.: The plaintiff claims damages for trespass to premises and false imprisonment
following his detention by the police at Mongu on the 24th December, 1973.

Detective constable Simubemba received information as a result of which he instituted

enquiries which resulted in the plaintiff being arrested on a charge of theft by public
servant. After receipt of the information Simubemba together with other police officers
visited a shed near Mongu which contained building materials which the plaintiff intended to
use in the construction of a house. Further enquiries were made by the police and at 1530
hours on the 24th December 1973, the plaintiff was arrested and then released on police
bond in the sum of K30. The plaintiff subsequently on several occasions attended court and
at the Mongu Police Station on the instructions of the police and in due course was advised
that all further proceedings were being discontinued.

In order to justify the arrest of the plaintiff the defendant must show that at the time of the
arrest the arresting officer had reasonable suspicion that the plaintiff had committed the
offence with which he was charged. Lord Denning, M.R. , in Wiltshire v Barrett, (1) when
considering the arrest of a plaintiff on the ground that he was unfit to drive through drink,
at p. 322 valid:

"I prefer to approach the case in this way: the constable is justified if the facts, as
they appeared to him at the time, were such as to warrant him bringing the man before the
court on the ground that the man was unfit to drive through drink. In other words, such as
to warrant him thinking that the man was probably guilty. It is for the jury to find, in case of
dispute, what were the facts as they appeared to the constable at the time, that is to say,
the grounds on which he formed his option; and then it is for the judge to rule whether
those facts were such as to warrant him forming that option, that is to say, whether those
grounds, considered objectively, afforded reasonable cause."

Reasonable suspicion cannot be equated with prima facie proof as there are many
circumstances which must be taken into consideration. Shaaban Bin Hussien and Others v
Chong Fook Kan and Another (2), was a decision of the Privy Council in an appeal from the
Federal Court of Malaysia. An occupant of a car was killed and another injured when a log of
wood fell off a passing lorry. The next day at about 0900 hours the respondent, the lorry
driver, and his attendant were arrested for the offence of reckless or dangerous driving
causing death. During the day of their arrest they were questioned by the police who
decided that the driver and attendant had been at the scene of the accident at the relevant
time. The police suspected that they alibis were false. It was held that at the time of arrest
it was reasonable for the police to suspect that one of the persons arrested was the driver of
the lorry from which the log of wood fell, but the police did not at the time have reasonable
suspicion that the driver was driving recklessly or dangerously. It was only when an alibi
was given, which the police thought was false, that it could be said that a reasonable
suspicion arose which would have justified the arrest. The court found that the arrest was
premature. At p. 1629 Lord Devlin said:

"In any case of wrongful arrest it is important to identify at the outset the precise
time of arrest, not only for the purpose of art. 5, cl. 3, of the Constitution, which provides
that an arrested person shall be informed as soon as may be thereafter of the grounds of
his arrest, but also because it is the time when the existence of a reasonable suspicion must
be proved." and at p. 1630:

"Suspicion in its ordinary meaning is state of conjecture or surmise where proof is

lacking, 'I suspect but I cannot prove'. Suspicion arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is the end. When such proof has
been obtained, the police case is completed it is ready for trial and passes on to its next
stage. It is indeed desirable as a general rule that an arrest should not be made until the
case is complete. But if arrest before that were forbidden, it could seriously hamper the
police. To give power to arrest on reasonable suspicion does not mean that it is always or
even ordinarily to be exercised. It means that there is an executive discretion. In the
exercise of it many factors have to be considered besides the strength of the case. The
possibility of escape, the prevention of further crime and the obstruction of police enquiries
are examples of those factors with which all judges who have had to grant or refuse bail are
familiar. "
Simubemba was the officer investigating the report; that the plaintiff had stolen building
materials belonging to the Public Works Department. Following the receipt of the report he
arranged for the Public Works Department Stores Officer at Mongu to inspect the material
and the latter confirmed that some of the property belonged to his department. This
occurred either on the 20th or the 21st December, the discrepancies in the date not being
material. On the 21st a statement was then taken from an Executive Engineer of the Public
Works Department and further statements were obtained before the plaintiff was arrested
on the 24th after he had made a statement under warn and caution and had shown the
police a voucher which he claimed authorised him to have possession of a water tank which
was part of the suspected stolen property. At first Simubemba believed the information he
had received from his informer and said that the reason for doing so was because he saw
the building material at the site the plaintiff was erecting his house. Simubemba arrested
the plaintiff before he had completed his investigations because, as he said, he feared the
plaintiff might interfere with them and because the plaintiff had not satisfied him that he,
the plaintiff, was the owner of the property. When he examined fifty-one corrugated iron
sheets Simubemba said he noticed they were old, and he disbelieved Mvula who had
claimed that the iron sheets belonged to Government. Simubemba then realised that Mvula
had not been telling the truth. Another reason why Simubemba did not accept Mvula's word
was because the plaintiff had produced proof that some of the building material did in fact
belong to him. Simubemba preferred the information that he had received from his informer
to that received from Mvula, but became hesitant to believe even that provided by his
informer when the plaintiff produced documentary evidence to support his claim that ten of
the eleven doors found at the site were his. Simubemba's inquiries with regard to the
alleged stolen property became limited to the eleven doors and one water tank, and finally
to one door and the tank. Finally Simubemba said that after the plaintiff had been released
on police bond he continued with his investigations and periodically altered the return date
on the bond to coincide with the occasions when he wished to see the plaintiff again during
the course of the investigations that were still continuing.

When Simubemba first saw the building material, and having already received certain
information, he had cause to suspect that it could have been stolen. This was confirmed by
Mvula. After examining the material Simubemba disbelieved Mvula, and after having been
shown certain documents by the plaintiff, Simubemba was hesitant to accept the truth of
the original report. The original report had concerned a large quantity of material; the
investigation then proceeded with regard to the eleven doors and the tank, and finally it was
limited to one door and the tank. The plaintiff had said that the tank had been loaned to him
by the Senior Stores Officer at the Public Works Department, Munalula, and that he had
promised to pay for the door by the end of that month, that is December 1973. Munalula
was not in Mongu at the time the plaintiff was arrested but made a statement to the police
on his return on the 2nd January.

The authenticity of the information Simubemba had received from both Mvula and the
informer were, on Simubemba's own admission, of doubtful veracity Simubemba had
satisfied himself before the plaintiff's arrest that the information he had received was
materially unreliable or false. He nevertheless proceeded to arrest the plaintiff because, as
he said, he thought the plaintiff would interfere with the investigations and because the
plaintiff had failed to satisfy him that he was the owner of the remaining property. The first
reason given for the plaintiff's arrest cannot be true because the plaintiff was released on
bond shortly there after. With regard to the second reason, the test is whether Simubemba
had reasonable suspicion that the one door and tank had been stolen. Not only had
Simubemba good reason to question the reliability of his information, but no report had
been received from the Public Works Department that any of its property was missing, and
the plaintiff had given an explanation as to how it came into his possession. When the
investigations were concluded several days after the plaintiff's arrest, the prosecutor
decided not to institute a prosecution and the police docket was closed by the
officer-in-charge.

If Simubemba did not think Mvula was telling the truth and was hesitant to accept the
information he had received from his informer, these facts were not such as to warrant, him
forming an opinion that the plaintiff had probably stolen the door or tank. The
reasonableness of his suspicion with regard to most of the building material had proved to
be unfounded and there was in the circumstances all the more cause to suspect that the
rest of the information be had received was similarly unreliable.

The court finds that the arrest of the plaintiff on the 24th December, 1973, was not based
on reasonable suspicion and was therefore, unlawful.

The court considers it expedient to comment on the use of a police bond for the purpose of
securing the periodic attendance of a person charged with an offence at a police station
while investigations are proceeding. The prescribed form requires the person charged to
appear before a specified court, and not at a police station, on a started date and time and
on any other or subsequent date required by the court, and not by the police, to answer the
charge. Under s. 33 of the, Criminal Procedure Code the release on bond of a person
arrested without a warrant is mandatory if it does not appear practicable to bring the person
concerned before an appropriate competent court within 24 hours of his being taken into
custody' unless the offence is one of a serious nature. Where a person is retained in custody
he must be brought before such court as soon as practicable. Section 33 reads:

"(1) When any person has been taken into custody without warrant for an offence
other than an offence punishable with death, the officer in charge of the police station to
which such person shall be brought may, in any case and shall, if it does not appear
practicable to bring such person before an appropriate competent court within twenty-four
hours after he is so taken into custody, inquire into the case, and, unless the offence
appears to the officer to be of a serious nature, release the person, on his executing a
bond, with or without sureties, for a reasonable amount, to appear before a competent
court at a time and place to be named in the bond; but, where any person is retained in
custody, he shall be brought before competent court as soon as practicable.
Notwithstanding anything contained in this section, an officer in charge of a police station
may release a person arrested on suspicion on a charge of committing any offence, when,
after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to
proceed with the charge.
(2) In this section, 'competent court' means any court having jurisdiction to try or
hold a preliminary inquiry into the offence for which the person has been taken into
custody."

Section 38 (1) of the Magistrates Courts Act, 1952 provides:

"Where a person is taken into custody for an offence without warrant and is retained
in custody, he shall be brought before magistrates' court as soon as practicable."

The Court of Appeal in R. v Houghton and R v Franciosy (3), dealt with a case where the
accused had been detained for four days during which period he was not permitted to
communicate with anyone, while police investigations were being, carried out. Lawton, L.J.,
in delivering the judgment of the court pointed out that the police can only arrest persons
for offences and had no power, save under the, Prevention of Terrorism (Temporary
Provisions) Act, 1976, to arrest anyone so that they could make enquiries about him.
Having made an arrest for a specific offence, they could hold the arrested person in custody
while they made inquiries; but when they had enough evidence to prefer a charge they
should do so without delay and comply with s. 38 (4) of the 1952 Act. Not only is it
improper for the police to detain person pending further investigations without bringing
them before a court as soon as practicable but it is equally improper to require persons
released on bond to represent themselves at a police station for the same purpose.

The plaintiff also claims damages for trespass following the police search of the plaintiff's
shed in which the building material was being stored. The evidence shows that the plaintiff
co-operated with the police throughout the period they were investigation the alleged
offence; he produced the documentary evidence he could to show that the building material
was rightfully in his possession and the evidence of the police witnesses was that the
plaintiff permitted them to inspect the material in the shed. On the evidence the court is not
satisfied that it has been established that the plaintiff did not willingly permit the police to
search the premises in question and for this reason the claim in trespass fails.

The plaintiff was detained at 1530 hours on the 24th December 1973, and released shortly
thereafter on police bond. He was however required to and did report to the police and ad
court on at least four subsequent occasions when he was eventually told that further
proceedings were being discontinued. The evidence does not show that the police acted in
contumelious disregard of the plaintiff's rights and will not therefore award him exemplary
damages. The court feels that a proper award in damages for the unlawful imprisonment of
the plaintiff would be the sum of K750 and judgment is awarded in favour of the plaintiff for
that amount.

Judgement for the plaintiff

J.K. MPOFU v IMPREGILO RECCHI (ZAMBIA) LTD AND GOODWIN MUNGANDI

(1979) Z.R. 51 (H.C.)

HIGH COURT
SAKALA, J.
28TH FEBRUARY, 1979
1978/HP/1231

Flynote

Criminal law and procedure - Appeals - Jurisdiction - Appeal against decision of deputy
registrar on assessment of damages - Whether Appeal lies to Supreme Court or to judge in
chambers.

Headnote

The main issue for consideration in this case was whether an appeal from the order of
assessment of damages by the deputy registrar lies to a judge in chambers.

Held:
 (i) The deputy registrar having assessed damages, the dissatisfied party should
appeal to the Supreme Court and not to a judge in chambers.

Cases cited:

(1) Ernst Karl Paul Lembe v Kearney & Company (1979) Z.R. 20.
(2) Times Newspapers Zambia Limited v Kapwepwe (1973) Z.R. 292.

Legislation referred to:

High Court Rules Cap. 50, O. 30, r. 10 (1).

Supreme Court Rules 1976 (England), O. 58 r. 2.

For the plaintiff: A.R. Lawrence, Solly Patel, Hamir & Lawrence.
For the defendant: J.M. Ngwenya, Jaques and Partners.

Judgment

SAKALA, J.: This is an application by the defendants for leave for extension of time within
which to file an appeal against the judgment of the learned deputy registrar on assessment
of damages given on the 30th November, 1978.

Although both parties have advanced arguments which relate to the merit of the appeal the
court at the beginning of the hearing posed the question - Can an order of assessment of
damages by the deputy registrar be appealable to a judge in chambers? With greatest
respect to both parties it would appear that they assumed the procedure. Consequently with
fairness to them, they had not seriously addressed their minds before they appeared before
this court.

On the 12th February 1979, this court delivered a ruling on the same preliminary issue in an
unreported case of Ernst Karl Paul Lembe and Kearney and Company Limited (1). The issue
in that case was also an application to a judge in chambers for extension of time within
which to file a notice of appeal to a judge in chambers against the decision of the deputy
registrar on assessment of damages. In that case just as in the present application, the
court invited the submissions of both counsel on a point of procedure, namely, whether an
appeal from the order of assessment of damages by the deputy registrar lies to a judge in
chambers or direct to the Supreme Court. This point was raised in that case because it
appeared from the history of that case that after Mr Justice Bweupe had entered judgment
in favour of the plaintiff he directed that damages be assessed by the deputy registrar in
chambers. The deputy registrar in chambers assessed damages in that case after hearing
evidence from both parties. The appellant having been dissatisfied with that assessment
appealed to this court. I said in that judgment:

"If the application for the extension of time is allowed, what it means in effect is
that, this court will have to hear an appeal against the decision of the Deputy Registrar on
assessment of damages referred to him by a court of the same jurisdiction as this court."

The only difference between the two applications is that in the earlier one the assessment
was referred to the deputy registrar by a judge while in the instant application the learned
deputy registrar assessed damages after an interlocutory judgment. However, the
substance iof the two cases in my view is the same. In that case, after both counsels made
submissions based on O. 30, r. 10 (1) of the High Court Rules and O. 58 r. 2 of the 1976
ed. of the White book, I said:

"It follows in my view that a decision, order or direction made by the Deputy
Registrar on a matter referred to him by a judge is made on behalf of the judge and hence
it is the decision or order of the judge who referred the matter to him. While order 30 rule
10 (1) of Cap. 50 may be said to be wide, it would in my view be a contradiction that a
decision made by the Deputy Registrar on behalf of a judge should be appealable to the
same judge or court of the same jurisdiction."

I further went on to say:

"While order 30 rule 10 (1) may not be of great assistance on the point, this court is
in my opinion entitled to seek assistance from order 58 (2) of the 1976 edition of the White
Book by virtue of section 10 of Cap. 50 which entitles the High Court to conform to the law
and practice observed in the High Court of justice in England in case of default in our law.
The practice in England according to order 68 (2) of the Supreme Court Rules is that an
appeal from the judgment, order or decision of the Master is to the Court of Appeal."

I held in that case that I could not entertain the application on the ground 40 of lack of
jurisdiction.

At the time I was hearing that appeal, my attention was never drawn to the case of Times
Newspapers Zambia Limited v Kapwepwe (2). The facts of that case are not very relevant to
this application. But it is the procedure followed in that case which is very relevant in this
application, namely, the deputy registrar having assessed damages, the dissatisfied partner
appealed direct to the Supreme Court and not to a judge in chambers. I do not see why
there should be any difference in procedure between this case and the present application.
While O. 30 r. 10 (1) appears not very clear, I take the view that the deputy registrar and a
judge in chambers on assessment of damages exercise the same jurisdiction. Otherwise the
practice of referring to the deputy registrar for assessment of damages would be rendered
meaningless. I decline to entertain this application on ground of lack of jurisdiction.

Taking into account the nature of the preliminary point, I consider it fair that each party
bear its own costs.

Application refused

GEDION MUSONDA AND CHISHA CHIMIMBA v THE PEOPLE (1979) Z.R. 53 (S.C.)

SUPREME COURT
GARDNER, BRUCE-LYLE, JJ.S. AND CULLINAN, A.J.S.
20TH FEBRUARY, 1979
S.C.Z. JUDGMENT NO. 9 OF 1979.

Flynote

Sentence - Juvenile offenders - Reformatory order - When appropriate.

Headnote
Three juvenile offenders aged 16, 15 and 13 were found guilty of burglary and theft. The
trial magistrate on the recommendation of a probation officer ordered that they be sent to a
reformatory. They were first offenders, had pleaded guilty and the value of K97.40 involved
was recovered.

Held:
A reformatory order is a very severe punishment and should only be made when
other methods of reformation are in the circumstances entirely inappropriate or
have proved to be in vain in the past.

Legislation referred to:

Juveniles Act, Cap. 217, s. 72 (3).

For the appellants: In person.

For the respondent: R. Balachandran, State Advocate.

Judgment

CULLINAN, A.J.S.: delivered the judgment of the court.

The juvenile appellants aged 16 and 15 years respectively; were found guilty with another
juvenile offender aged 13 years of burglary and theft.

The learned trial magistrate ordered that the juvenile appellants be sent to a reformatory.
He did so, on the recommendation of a probation officer, because, as he observed, they
lacked parental care. We do not consider that that is a proper basis for making a
reformatory order. A reformatory order is a very severe punishment, warranting as it does
four years' detention, and should only be made when other methods of reformation are in
the circumstances entirely inappropriate or have proved to be in vain in the past. Indeed, in
the case of the second juvenile appellant, the learned trial magistrate does not seem to
have considered the provisions of s. 72 (3) of the Juveniles Act which reads as follows:

"A court shall not order a child to be sent to a reformatory unless the court is
satisfied that having regard to his character and previous conduct and the circumstances of
the offence, it is expedient for his reformation and the prevention of crime that he should
undergo a period of training in a reformatory."

In the present ease the juvenile offenders were first offenders. They pleaded guilty. The
stolen property valued at K97.40 was recovered. We do not appreciate why in the
circumstances the learned trial magistrate did not, as in the case of the other juvenile
offender, make a probation order. In all the circumstances, the reformatory order is set
aside and we order that the juvenile appellants be required for the period of one 15 year
from the date of this order, to be under the supervision of a probation officer and that
during that period they be required to reside at the Insakwe Probation Hostel at Ndola.

Order set aside. Probation order substituted

DAVIES MWAPE v THE PEOPLE (1979) Z.R. 54 (S.C.)

SUPREME COURT
GARDNER, BRUCE-LYLE, JJ.S. AND CULLINAN, A.J.S.
9TH, 23RD JANUARY AND 20TH FEBRUARY, 1979
S.C.Z. JUDGMENT NO. 8 OF 1979

Flynote

Criminal law and procedure - Juvenile offenders - Determining age of - Procedure - Relying
on ocular observation - Whether sufficient.

Headnote

The appellant was convicted on his own plea of guilty of house breaking and theft and
sentenced to two years' imprisonment with hard labour. He appealed on the ground that he
was a juvenile and should have been tried and sentenced as such. The trial magistrate had
made ocular observation and noted that the accused was above eighteen years.

Held:
(i) Under s. 118 (1) of the Juveniles Act, it is sufficient for a court to rely solely
on ocular observation, and if it appears that an offender is a juvenile, an
inquiry must be made to ascertain his exact age for the purpose of
considering the powers of the court in relation to such offender. However
where by ocular observation the offender is obviously an adult, the court is
not put on its inquiry.

(ii) When such inquiry has been made, the provision that an order or judgment of
the court shall not be invalidated by any subsequent proof that the age of
that person was not correctly stated or estimated by the court comes into
effect, and there cannot be any appeal on the question of age, provided that
the inquiry made was in fact a due inquiry and not defective in any way.
Where no such enquiry has been made the finding as to the offender's age is
appealable.

Legislation referred to:

Juveniles Act, Cap. 217, s. 118 (1).

For the appellant: In Person.

For the respondent: A.H. Obote Odora, State Advocate.

Judgment

GARDGNER, J.S.:delivered the judgment of the court.

The appellant was convicted on his own plea of guilty of housebreaking and theft; the
particulars of the charge being that he together with another, broke and entered a dwelling
house and stole personal property to the value of K1,078.01n. He was sentenced to two
years' imprisonment with hard labour and he appeals to this court on the grounds that he is
a juvenile and should have been tried and sentenced as such.

The charge sheet prepared by the public prosecutor indicated that both the appellant and
his co-accused were aged eighteen years. Before taking a plea, the magistrate made a note
on the record as follows: "I am not convinced that the two accused are eighteen years. They
are above eighteen years and so I treat them as adults." We take it that by making this
decision the magistrate was aware of the law relating to juveniles and he found that both of
the accused had attained the age of nineteen years.

There is no specific provision in the Juveniles Act, Cap. 217 setting out the precise
procedure which should be adopted to ascertain the age of accused persons. Section 118
(1) reads as follows:

"Where a person, whether charged with an offence or not, is brought before any
court otherwise than for the purpose of giving evidence, and it appears to the court that he
is a juvenile, the court shall make due inquiry as to the age of that person, and for that
purpose shall take such evidence as may be forthcoming at the hearing of the case, but an
order or judgment of the court shall not be invalidated by any subsequent proof that the
age of that person has not been correctly stated to or estimated by the court, and the age
presumed or declared by the court to be the age of the person so brought before it shall, for
the purposes of this Act, be deemed to be the true age of that person and, where it appears
to the court that the person so brought before it has attained the age of nineteen years,
that person shall, for the purposes of this Act, be deemed not to be a juvenile."

It might be argued that the section relates solely to the necessity for a court to ascertain
the exact age of a juvenile in order to consider what are the powers of the court in relation
to any order to be made under the Act. However the last four lines of the section, which
state that where it appears to the court that a person has attained the age of nineteen
years he shall be deemed not to be a juvenile, indicate that the purpose of the section is
also directed to the question as to whether the court should sit as a juvenile court or as an
ordinary court. We are quite satisfied that s. 118 (1) also relates to the duty of a court when
considering the nature of its jurisdiction.

It is necessary now to consider whether it is sufficient for a court to rely on ocular

observation alone in making a decision as to whether or not an accused is a juvenile. We
are of the opinion that the section indicates that it is sufficient for a court to rely solely on
ocular observation, and where it appears that an offender is a juvenile an inquiry must be
made to ascertain his exact age for the purpose of considering the powers of the court in
relation to such offender. When such inquiry has been made the provision that an order or
judgment of the court shall not be invalidated by any subsequent proof that the age of that
person has not been correctly stated or estimated by the court comes into effect, and there
cannot be an appeal to a higher court on the question of age, provided that the enquiry
made is in fact a due inquiry and is not defective in any way. When a court relies on ocular
observation to decide that a person has attained the age of nineteen years no inquiry is
needed; but the provision of the section that an order or judgment of the court shall not be
invalidated by any subsequent proof that the age of the person has not been properly stated
or estimated by the court does not come into effect and the decision of the court on this
point is appealable. In our view, whenever a court is put on its inquiry as to the age of a
possible juvenile offender it is the duty of the court to carry out due inquiry as to the age of
that offender. As, in this case, the charge sheet indicated the age of the appellant as being
eighteen years, we consider that the trial court should have been put on its inquiry. In the
result the decision as to the age of the appellant is not protected by the provision against
invalidation and it is within the powers of this court to deal with the question on appeal.

There are many cases in which a court could not possibly be said to an be put on its inquiry
and a court would be entitled to over-rule a frivolous claim to be a juvenile made by a
person who, by ocular observation, is obviously an adult. In such cases, although the court's
decision would be appealable and not protected by the provision against invalidation, such
an obviously frivolous claim could not succeed on appeal. The purpose of this judgment is to
indicate to courts that in all borderline cases the safest course for them to take is to carry
out a due inquiry in accordance with the terms of the section.

As we have said, we are satisfied that the trial court should have been put on its inquiry in
this case and having seen the appellant we are satisfied that the claim was not frivolous.
Evidence should have been called from relatives, friends, or, if necessary, a medical expert
witness in order to ascertain the age of the appellant; ocular observation was not enough.

We have decided that it would be impracticable to send this case back to the lower court in
order that the correct procedure to ascertain the age of the appellant should be put into
effect, and we, therefore, ordered, on his last appearance before us, that the appellant
should be examined medically, as to his age. A medical report has now been submitted to
this court indicating that a radiological examination reveals the true age of the appellant to
be over twenty years. In the event therefore it is proper that he should have been dealt
with as an adult.

The appellant was sentenced to two years' imprisonment with hard labour for taking part in
a housebreaking and theft of property to the value of over a thousand kwacha; of the
property stolen only that to the value of K309 has been recovered. The trial magistrate took
into account the fact that the appellant was a first offender and had pleaded guilty. This
sentence was not wrong in principle nor does it come to us with a sense of shock.

The appeal against sentence is dismissed.

Appeal dismissed

EZRA FANWELL SIMAMBO v THE PEOPLE (1979) Z.R. 57 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ. S.
14TH, 16TH NOVEMBER, 1978 AND 9TH JANUARY, 1979.
S.C.Z. JUDGMENT NO. 3 OF 1979

Flynote

Criminal law and Procedure - Hunting game animal without licence - Forfeiture of firearm
used in crime - Owner third party - Whether an order appropriate - National Parks and
Wildlife Act, ss. 145 and 32.

Headnote

This was an application to set aside an order made by the Sub-ordinate Court under s. 145
(1) of the National Parks and Wildlife Act (hereinafter referred to as the Act) that a firearm
belonging to the applicant be forfeited.

The applicant had given his rifle to one Phiri with instructions to kill an elephant. Phiri went
in the bush known as Petauke Open Area and killed a waterbuck. He was arrested and
charged with hunting a game animal contrary to s. 37 of the Act and being in unlawful
possession of a firearm without a licence contrary to s. 10 (1) of the Firearms Act. He
pleaded guilty and was convicted and thereupon the prosecution requested the court in
terms of s. 145 (1) of the Act to declare the firearm to be forfeited.

On appeal the applicant challenged the order for forfeiture on the grounds that Phiri was not
the owner of the firearm, and that for such order to be made where the property involved
belonged not to the person convicted but to an innocent third party, it must be shown that
the third party was privy to the commission of the offence.

Held:
(i) Section 146 specifically limits the property in respect of which a conditional
order may be made to a vehicle, aircraft or boat and does not apply to
firearms. The fact that the true owner was not privy to the offence in question
and the issue of ownership of the property in question would only be relevant
with regard to the above mentioned properties.

Legislation referred to:

National Parks and Wildlife Act Cap. 316, ss. 32 and 145.
Firearms Act, Cap. 111, s. 10 (2) (a).

For the applicant: In person.

For the respondent: A.H.O. Oder, State Advocate.

Judgment

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

This is an application to set aside an order made by the Subordinate Court. under s. 145 (1)
of the National Parks and Wildlife Act, Cap. 316 (to which we will refer as the Act) that a
firearm belonging to the applicant be forfeited. The circumstances giving rise to this
application were these. On the 21st July 1977, one Weluzani Phiri and certain other people
went into the bush known as Petauke Open area; he had with him a .375 rifle, and whilst in
the bush he killed a waterbuck, which is a game animal. Later on the same day he was
found by a wildlife guard in possession of the meat and when questioned it transpired that
the rifle belonged to the applicant. Phiri was charged on two counts, namely hunting a
game animal contrary to s. 37 of the Act, and begin in unlawful possession of a firearm
without a licence contrary to s. 10 (2) (a) of the Firearms Act, Cap. 111. He pleaded guilty
and was duly convicted, and thereupon the prosecution requested the court in terms of s.
345 (1) of the Act to declare the firearm to be forfeited. It is convenient to set out at this
point the relevant subsections of s. 145.

"145. (1) Upon the conviction of any person of an ounce under this Act, the court
shall, at the request of the prosecution in addition to any other penalty imposed, declare
any wild animal meat of any wild animal, trophy, firearm or other weapon or any trap, net,
poison, material or article, or, subject to the provisions of subsections (2) to (8) inclusive,
any vehicle, aircraft or boat, with which the offence was committed, or which was used in,
or for the purpose of, or in relation to, or in connection with, the commission of the said
offence, to be forfeited without compensation and shall order the same to be disposed of as
the Minister deems fit.
(2) Where the prosecution requests a declaration of forfeiture pursuant to subsection
(1) in respect of any vehicle, aircraft or boat, as the case may be, the court shall make an
order (herein after referred to as a conditional order), to the effect that unless any person
other than the convicted party claims, pursuant to this section, any right of ownership in the
said vehicle, aircraft or boat within three months of the date of the publication of the said
conditional order, as provided by subsection (3), the prosecution may apply to the court ex
parte for a declaration of forfeiture pursuant to subsection (1), and the court shall make
such declaration."

The applicant advanced two arguments. He submitted that there was nothing in the record
to show that the firearm had been used in the commission of the offence by Phiri under the
Act; he argued that Phiri had admitted killing the waterbuck but said nothing about killing it
with the applicant's rifle. This argument is untenable; in our view the only possible inference
to be drawn from the record is that the waterbuck was killed with the applicant's rifle.

The applicant's second argument is that the trial magistrate erred in law in that he ordered
the forfeiture of the firearm without considering the fact that Phiri was not the owner of the
firearm and that the applicant was not privy to the commission of the offence. He submits
that before a court may make an order forfeiting property belonging not to the person
convicted of the offence in question but to some innocent third party it must be shown that
the third party was privy to the commission of the offence. This submission, insofar as it
relates to a firearm, is directly contrary to the express provisions of s. 145. Subsection (2)
cited above, specifically limits the property in respect of which a conditional order may be
made to a vehicle, aircraft or boat, and sub-s. (5) provides that any person who claims any
right of ownership in any such vehicle, aircraft or boat may make an application in writing
for the discharge of the said conditional order; there then follows sub-s. (6):

"(6) In any proceedings brought pursuant to subsection (5), the onus of proof shall
be on the applicant and no order discharging the conditional order shall be made unless the
applicant has adduced evidence and proved to the satisfaction of the court that he was not
in any way privy to the offence and that the said vehicle, aircraft or boat was, at the time of
the commission of the offence, being used for such purpose without his knowledge or
consent and without, on his part, any negligent disregard of its user by the convicted party."

It is thus abundantly clear that the fact that the true owner was not privy to the offence in
question is relevant only in the case of a vehicle, aircraft or boat. It is equally clear from the
provisions of sub-ss. (1) and (2) that the ownership of the property in question is relevant
only in the case of a vehicle, aircraft or boat.

We are bound to observe also that it is difficult for the applicant to suggest that he was not
privy in some way to the offence. He lent his rifle to a person who had no licence in respect
thereof; on his own showing he requested that person to hunt an elephant (also a game
animal) in an open area when that person had no licence to do so, and this certainly was an
offence under the Act. It is true that the animal actually shot was a waterbuck which, if the
applicant's statement is to be believed, was contrary to his instructions, but it can hardly be
argued that, even if the property were a vehicle, aircraft or boat and such property had
been used in the commission of the offence in circumstances similar to those in which the
firearm was used in the present case, the applicant had brought himself within the words of
s. 145 (6).

The only point which is even arguable in this case is that s. 145 of the Act does not apply,
and that the matter ought to have been determined according to the provisions of s. 32.
This section, so far as is relevant, reads:
 "32. (1) Save as is otherwise provided by this Act, any person who, not being the
holder of a game licence issued pursuant to Part VI and of a permit issued pursuant to
subsection (1) of section thirty three, relevant to such hunting, hunts any game or
protected animal in any game management area shall be guilty of an offence:
(2) Save as is otherwise provided by this Act, any person who not being the holder
of a permit issued pursuant to subsection (1) of section thirty-three, relevant to such
hunting, hunts any wild animal, other than a game or protected animal, shall be guilty of an
offence:

Provided that the provisions of this subsection shall not apply to any bona fide
resident in a game management area who, within such game management area, hunts any
wild animal not being a game or protected animal.

(3) Upon the conviction of any person of an offence against this section, the said
person being the owner of, or in lawful possession, of any firearm used or possessed in the
commission of the said offence, the court shall, at the request of the prosecution and in
addition to any other penalty imposed, declare the said firearm to be forfeited or order it to
be destroyed without compensation, or both declare it to be so forfeited and order it to be
so destroyed without compensation."

This section appears in Part IV of the Act under the title "Game Management Areas".
Although in the first portion of sub-s. (2) there is no reference to hunting in a game
management area, it is clear from the proviso to that subsection as well as to the general
structure of the Act and to the Part in which this section appears that it must be read as
applying to hunting in a game management area. It may be argued that it seems curious
that the legislature should have regarded this offence as less serious than, for instance,
hunting in an open area, and should have restricted the circumstances in which a forfeiture
order could be made to cases where the convicted person was the owner of or in lawful
possession of the firearm used or possessed in the commission of the offence. We confess
that we cannot understand why the legislature has taken this view; however, the provisions
of the Act are quite clear and do not give rise to any absurdity. The offence in this case was
committed in an open areas; we are satisfied that s. 32 does not apply and that s. 145
does, and that, the prosecution having made a request to the court to declare the firearm to
be forfeited, the learned magistrate had no discretion in the matter and was obliged to
make the declaration requested.

We are bound to comment on the policy of the Act in creating a structure in which the
discretion whether or not to request a forfeiture order is vested in the prosecution; in the
forerunner to the Act, the Fauna Conservation Act, Cap. 241, the discretion was vested in
the court.

It seems to us that this is an undesirable position which could give rise to most unfortunate
results. The prosecution might not be aware of the full circumstances in any given case and
might make a request which must inevitably result in an order of forfeiture; thereafter, the
owner might be able to establish that he was completely innocent in the matter, but the
order having been made there is no provision for setting it aside. Discretionary decisions of
this kind are, in our view, properly made by the courts and not by prosecutors, who in many
cases in relation to offences of this kind might be very junior and inexperienced.

Application refused
THE PEOPLE v MAILOSI SIAMWABA (1979) Z.R 61 (H.C.)

HIGH COURT
SAKALA, J.
28TH DECEMBER, 1978
HPR/416/78

Flynote

Legal aid - legal aid certificate - Right to refuse or dispense with it by accused - Legal Aid
Act, s. 24A - Duty on court to explain to accused this right.

Headnote

The accused was granted a legal aid certificate by the court under s. 9 of the Legal Aid Act.
The legal aid defence counsel could not attend and the case was adjourned fifteen times
over a period of seven months. The accused then applied to court for leave to defend
himself which was granted. The court however explained to the accused the seriousness of
the offence and the need to be represented. The accused said he was tired of waiting for
counsel. He pleaded guilty and was sentenced to thirty months' imprisonment. On review:

Held:
(i) In cases where a legal aid defence certificate has been granted in terms of s.
9 of the Legal Aid Act and counsel does not attend court after several
adjournments, the alternative is for the court to dispense with legal aid
representation pursuant to s. 24A 1 (2) of the Act.

(ii) Under s. 24A an accused may refuse or dispense with legal aid representation
and it is the court's duty when granting a certificate under s. 9 of the Act to
explain to the accused this right.

(iii) The course taken by the accused in the instant case was in order.

Case referred to:

(1) Tembo v The People (1974) ZR 286.

Legislation referred to:

Legal Aid Act, Cap. 546, ss. 9, 24A

Judgment

SAKALA, J.: On the 4th November 1977, the accused appeared before the Subordinate
Court of the First Class for the Kalomo District charged with the offence of arson, contrary
to s. 328 (a) of the Penal Code.

The allegation against him was that on the 25th day of October 1977, at Kalomo in the
Kalomo District of the Southern Province of the Republic of Zambia wilfully and unlawfully
set fire to a grain barn valued at K61.00 the property of Saliya Siamwaba.
On that day, the plea was not taken. The accused was granted a legal aid defence
certificate. The case was adjourned to the 14th November 1977, for plea before Kabamba
Esq., and the accused was remanded in custody. For reasons not stated on record, the
accused appeared in court on the 18th November 1977, before Mr Choongo who adjourned
the case for plea to the 28th November 1977, before the senior resident magistrate, Mr
Kabamba. The accused was remanded in custody.

For reasons again not stated on record, the accused appeared before Mr Choongo on the 1st
December 1977. No plea was taken. The case was adjourned to the 5th December 1977, for
plea and to enable a defence counsel from Legal Aid Department to attend. The accused
was again remanded in custody. Thereafter, according to the record, the case was
adjourned for about fourteen times on account of the defence counsel from Legal Aid
Department being unable to attend court. Finally on the 4th May 1978, after a period of
about seven months, from the date of the accused's arrest and after numerous appearances
in court, the accused is recorded to have said:

"I have stayed long in remand prison since 30th October 1977 up to now a period of
seven months without seeing my so called legal aid counsel. I just want to defend myself."

Thereafter, the court explained to the accused the seriousness of the offence of arson and
the Government's desire to have accused persons in such offences represented by defence
counsel. The record shows that the accused said:

"I have heard all the explanation your worship. I have good and sufficient evidence
to defend myself. And I am tired of waiting for the legal aid counsel."

The court allowed the accused's application to defend himself and proceeded to take the
plea.

According to the record, the accused pleaded guilty to the charge. The facts were read out
in open court and admitted to be correct. The accused was sentenced to thirty months'
imprisonment with hard labour with effect from 30th October 1977, the date of his arrest.
The sentence was made subject to confirmation by the High Court.

The case record is before me for review. It will be observed that although the case took
seven months to dispose of, the record is a very short one. Yet, it took the Subordinate
Court concerned a period of over seven months to forward the record to the High Court for
confirmation of sentence. (See covering minute dated 7th December, 1978). It is perhaps
fortunate that the court imposed a substantial sentence otherwise the accused would have
already served his sentence before the same was confirmed. Be that as it may, I find that
the adjournment in this particular case exceeded the interest of justice. The record does not
indicate what efforts were actually made to contact the Legal Aid Department to secure the
attendance of counsel after the court issued the legal aid defence certificate. In my view, to
adjourn the case for fifteen times over a period of seven months because counsel for
unspecified reasons could not attend is to say the least justice denied.

From the various Reviews of Subordinate Court cases done by this court, it has been
observed that delays in disposing of cases where legal aid defence certificates have been
granted are becoming a frequent feature, in particular, in subordinate courts in rural areas.
In most cases, the cause of the delay has been the non-availability of the counsel from
Legal Aid Department. I make this observation not with a view of putting the Legal Aid
Department in the dock. The problems they face are too well known that it is unnecessary
to mention them here. On the other hand to adjourn a case, as it happened to the case
under review for fifteen times over a period of seven months when the accused is in
custody, simply because a legal aid counsel could not attend on each occasion is not only
justice delayed and denied but also defeats the very best intentions of the Legal Aid Act,
namely, a fair and speedy trial. The question which most subordinate courts are faced with
appears to be one of an alternative to these adjournments in cases where a legal aid
defence certificate has been granted in terms of s. 9 of the Legal Aid Act, Cap. 546, when
counsel does not attend court after several adjournments. In my view, the alternative is
certainly not an indefinite number of adjournments.

In the case of Tembo v The People at p. 287 no legal aid certificate was granted. The court
pointed out that the provisions of s. 9 of the Legal Aid Act are mandatory. The court also
observed that circumstances may exist in which legal aid representation may be dispensed
with notwithstanding that a certificate in terms of the Act has been issued. Section 24A (1)
(2) of the Legal Aid Act reads as follows:

"Notwithstanding anything to the contrary contained in this act -

(a) an accused person may (should he so decide) refuse legal aid which would
otherwise be granted to him in furtherance of a legal aid certificate issued or to be issued
under Part III;
(b) a court may, on the application of a legally aided person -

(i) cancel any legal aid certificate which has been issued in respect of that
person;
(ii) cancel any recommendation made under subsection (2) of section
nine;
(iii) permit him to conduct his own case or by a practitioner of his choice
without legal representation which has been arranged by the Director.

(2)Where an accused per Arson refuses legal aid or makes application under
paragraph (b) of subsection (1), the court shall record reasons put forward by the accused
person for the refusal or the application, as the case may be."

Quite clearly, an accused may decline legal aid representation despite a certificate having
been issued. This appears to have been the course taken here although after a long period.
It is perhaps fortunate in the instant case that the accused pleaded guilty and was convicted
accordingly. A greater amount of injustice would have been caused had the result been
different. In the interest of justice, therefore it would appear to me that while the provisions
of s. 9 of the Legal Aid Act are mandatory, when a court after certain inquiry grants a legal
aid defence certificate, the trial court granting the certificate should also explain to the
accused the provisions of s. 24A. In so doing, the accused will have been afforded an
opportunity of electing for further adjournments or conducting the case on his own. Care
however must be exercised to avoid evading compliance with s. 9 by indiscriminate resort to
s. 24A. Section 24A should be resorted to on good grounds in the interest of justice. The
courts should accept the accused's applications only when there are good reasons,
inordinate delay being a good example. By so doing in my view a situation of unwarranted
number of adjournments as has happened in this case would be avoided.

Turning to the instant case, it would appear from the record that the learned trial
magistrate hesitatingly allowed the accused's application to conduct the case on his own.
The hesitation in my view, was unnecessary. I am satisfied that the course taken by the
accused was in order. Accordingly, the conviction is confirmed. Turning to sentence, I agree
with the learned trial magistrate that the offence of arson is a serious one. However, the
facts of this case which clearly suggest that it was committed, in circumstances arising out
of a domestic dispute were more in favour of the accused person. Furthermore, the property
destroyed was only valued at K61.00. Although the accused had a previous conviction of an
offence involving violence namely, assault occasioning actually bodily harm, I nevertheless
consider that in the circumstances of this case, a sentence of thirty months' imprisonment
with hard labour was on the severe side. Consequently, I set aside the sentence imposed by
the learned trial magistrate. In its place, I impose a sentence of fifteen months'
imprisonment with hard labour with effect from the date of arrest which is the 30th October,
1977.

Conviction confirmed
Order for substituted sentence

THE PEOPLE v KELVIN SIWALE (1979) Z.R. 64 (H.C.)

HIGH COURT
SIVANANDAN, COMMISSIONER
2ND FEBRUARY, 1979
HNR/16/1977

Flynote

Criminal law and procedure - Exhibits - Disposal of in criminal proceedings where charge for
which exhibit tendered in has not been proved - Criminal Procedure Code, s 355

Headnote

In a criminal case where the accused was charged with theft, a motor vehicle was tendered
as an exhibit. However, the charge failed as the evidence did not support the charge and
consequently the trial magistrate made an order that the vehicle be returned to Mr Mulenga,
a bona fide purchaser. The case was sent to the High Court for a review of the trial
magistrate's order.

Held:
(i) Under s. 355 of the Criminal Procedure Code, the court may order that the
exhibit which was tendered or put in evidence be returned at any stage of the
proceedings to the person who appears to be entitled thereto subject to such
conditions as the court may seem fit to impose.

(ii) The words "to the person who appears to be entitled thereto" do not
necessarily refer to the owner but if it is found that no offence has been
committed in respect of the exhibit which is the subject matter of the case,
then it must be returned to the person from whose possession it was taken by
the investigating officer, except where that person does not make a claim or if
there are circumstances which justify the court to take a different course.

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 355.

Judgment

SIVANANDAN, COMMISSSIONER: This case was sent to the High Court by the Senior
Resident Magistrate, Kitwe for the purpose of review of an order of the trial magistrate
dated 4th May, 1978.

The order which is the subject of review is as follows:

"The vehicle would still belong to witness Mr Mulenga since he has paid K1,000 as
deposit."

This order was made after the conclusion of the trial in the above case No. 3K/1065/77 in
which the accused who was charged for the offence of theft of a motor vehicle namely
Bedford Truck Reg. No. EN 6260 valued at K3,500, the property of Mr Chomba was
acquitted after the trial.

According to the minute of the senior resident magistrate and the judgment of the trial
magistrate, the brief facts are as follows:

The vehicle in question originally belonged to Modern Joiners Limited, Kitwe whose
Managing Director was Mr Chomba. It appears Mr Chomba negotiated the sale of the said
vehicle for K3,500 with Mr Simfukwe of People's Security Services of which Mr Siwale the
accused in this case was the General Manager. It is also in evidence that Mr Siwale the
accused negotiated the sale of the said motor vehicle with Mr Mulenga who is PW1 in this
case, and Mr Mulenga had paid a deposit of Kl,000 as required by Mr Siwale and took
possession of the said motor vehicle and from whom the motor vehicle was recovered by
the police during the investigation into this case.

According to the evidence in the case the charge of theft failed as the evidence did not
support the charge and consequently the said motor vehicle was returned to Mr Mulenga
PW1 by the trial magistrate as per his order referred to above.

It will be seen from the evidence that Mr Mulenga was a bona fide purchaser and besides
the motor vehicle in question was not the subject of theft nor of any offence. If the criminal
case has not been filed the motor vehicle would have remained in the possession of PW1
and the respective parties would have resorted to civil claim to recover the value of the said
vehicle or its return.

According to s. 355 of the Criminal Procedure Code relating to disposal of exhibits, the court
may order that the exhibit which was tendered or put in evidence be returned at any stage
of the proceedings to the person a who appears to be entitled thereto subject to such
conditions as the court 15 may seem fit to impose. The words "to the person who
appears to be entitled thereto" are clear in that the person referred to need not necessarily
be the owner. The guiding principle is that when it is found in any criminal proceedings that
no offence has been committed in respect of the exhibit which is the subject matter of the
case it must be returned to the person from whose possession it was taken by the
investigating officer as otherwise people will begin to make use of the criminal courts as a
forum to settle their civil disputes. This rule should only be deviated from when a person
from whose possession it was taken does not make a claim or there are circumstances
which justifies the courts to take a different course.
In this case, the facts are clear that there had been a sale of the motor vehicle to Mr
Mulenga PW1 who is a bona fide purchaser having deposited a sum of K1,000 and the
exhibit namely the motor vehicle in question was taken from his possession and he claims
it. In the circumstances, I find that the order of the trial magistrate is correct. The parties
must, therefore resort to civil claim for the payment of the price or for the return of the
vehicle and obtain an order of court.

For the fore-going reasons, the order of the trial Magistrate is confirmed.

Order confirmed

THE PERFORMING RIGHT SOCIETY LIMITED v FRANCIS ANTHONY HICKEY trading

as BAR-B-QUE DRIVE IN RESTAURANT (1979) Z.R. 66 (H.C.)

HIGH COURT
SAKALA, J.
8TH DECEMBER, 1978
1976/HP/1154

Flynote

Copyright - Infringement - Defence of mistake and innocence - Claims for injunction and
damages.

Headnote

This was an application for injunction and claim for damages for infringement of copyright.
The defendant played three musical records in public without obtaining a licence from the
plaintiff who was the owner of the copyright. The court found that the infringement was for
one day. The defence was that the performance was done innocently and under mistake.

Held:
(i) Under s. 13 of the Copyright Act, copyright is infringed if an act is done falling
within the copyright without licence of the person in whom copyright is
vested. Infringement is actionable at the suit of the owner.

(ii) If it is proved and admitted that the infringement was committed but that the
defendant was not aware and had no reasonable grounds for suspecting that
copyright subsisted in the work, the plaintiff shall not be entitled to any
damages against the defendant but to an account of the profits in respect of
the infringement whether any other relief is granted or not.

(iii) On the evidence of the instant case, and taking into account the defence put
up by the defendant, the plaintiff was not entitled to any damages but to an
account of profits in respect of the infringement.

(iv) Injunction granted and the plaintiff is entitled to profits.

Editorial Note
The judge seems to have ignored that piece of evidence where the defendant said, that he
had received several letters from the plaintiff's solicitors asking him to stop playing
copyright music, but he did not know what they were asking. He had never in his life heard
that there is copyright in music-see Halsbury's Laws of England, 4th ed, Vol. 9, para. 938;
"defendant does not establish that he had no reasonable grounds for suspecting the
existence of copyright by showing that he held an honest but erroneous view of the law."]

Legislation referred to:

Copyright Act, Cap. 701, s. 13.

Copyright Act, 1956 (England), s. 17, (2).

For the plaintiff: N. Mavrokefalos, D.H. Kemp & Co.

For the defendant: A.R. Lawrence, Solly Patel, Hamir & Lawrence.

Judgment

SAKALA, J.: The plaintiff's claim is for an injunction to restrain the defendant whether by
himself or by his servants or agents from infringing the plaintiff's copyright by
communicating to the public or authorising or procuring communication to the public of the
musical worlds "Kung Fu Fighting", "House of Exile", and "Money won't save you" or any
other musical works the copyright of which vests in the plaintiff. The plaintiff also claims for
damages.

In support of the claim, PW1 Ronald Clarence Chipumza an accountant with Lightfoot
Advertising told the court that he is also the Zambian Agent for the Performing Right
Society Limited, the plaintiff in this case. He testified that the objective of the plaintiff is to
protect copyright of music writers, artists and composers. The society represents them and
collects fees on behalf of its members which in the end is distributed to the members. In
Zambia, the position of the plaintiff is to represent the copyright of the affiliated societies
throughout the world. He testified that in early 1975, a search was conducted at the
defendant's premises to determine the extent to which the copyright of the society
members was being violated. He told the court that in September, a letter was sent to the
defendant advising him that the plaintiff's copyright was being infringed. Another letter was
sent in October 1975, reminding the defendant of the consequence of performing copyright
music without the consent of the copyright owner. The witness further testified that he also
wrote the defendant suggesting to him to take out the society's licence. But there was no
reply to any of the letters. Further, the defendant made no attempt to arrange for a
meeting. In the end the matter was referred to the plaintiff's solicitors. The witness further
testified that he physically, on several occasions made searches at the defendant's
premises. First of the occasions was on the 4th April 1975. He discovered that the Society's
copyright was being infringed. The inspections were carried out, after the defendant failed
to reply to the correspondence. At the time of the inspections, the songs that were being
performed were "Kung Fu Fighting", "House of Exile", and "Money won't save you". These
last two songs were composed by Jimmy Cliff while "Kung Fu Fighting" was by Carl Douglas.
He testified that the copyright in these works subsists in the plaintiff. The witness also told
the court that after the institution of the present proceedings, he carried out another search
at the defendant's premises on the 11th July, 1978. It was again established that the
copyright of the society was still being violated. He said about five searches in all were
carried out by him personally. He said that other works of the plaintiff are still being
infringed in addition to those specifically mentioned in the pleadings.
The witness further testified that the fees collected by the society on behalf of its members
are calculated on the basis of the number of people who attend a dance. The calculation is
K2.00 per fifty people per dance. He said on the five occasions, he inspected the
defendant's premises, he observed that about fifty to sixty people were present on each
occasion. The inspections were carried out on different days of the week. The royalty fees at
K2.00 per fifty persons per dance amount to K2.00 per night.

In cross-examination, the witness said that in his letters to the defendant, the records
"Kung Fu Fighting", "House of Exile", and "Money won't save you", were not mentioned. He
also said there are several versions of "Kung Fu Fighting" by different artists. He said at the
time he entered the defendant's premises for inspection, he paid K2.00 and apart from the
three records he heard, there were many others playing. He did not approach the defendant
and did not ask him not to play the records in question. He said it was possible that the
defendant was not aware of the infringement of the copyright. He told the court that it was
on the 26th April 1976, when he heard the three records being played. The witness said
after the 11th November 1976, his lawyer advised him that the defendant had indicated
that he will not play the three records again although he was not sure that the copyright
was vested in the plaintiff. He said the writ of summons was issued on the 11th November
1976. He said it was possible that one could innocently play the records without knowing
whose works they are.

In re-examination, he told the court that from the correspondence sent to the defendant,
the defendant must have or ought to have been aware that he was infringing the plaintiff's
copyright. This was prior to the institution of the proceedings. He said in addition a
pamphlet was sent to the defendant. In answer to questions by court, the witness said the
copyright of the records has nothing to do with the plaintiff but the musical works.

In defence, DW1 Francis Anthony Hickey testified that he is one of the proprietors of Bar -
B-Que Drive-in Restaurant. He agreed that on the 26th April 1976, he caused to be heard in
public three records namely, "Kung Fu Fighting", "House of Exile", and "Money won't save
you". He said it is not his intention to carry on breaking the copyright. He said before then
he received several letters from the plaintiff's solicitors asking him to stop playing copyright
music. But he did not know what they were asking him. He has never in his life heard that
there is copyright in music. He testified that he has bought records and played them. The
letters he received did not mention any specific records and the pamphlet he received did
not specify the music. He said he only realised that the letters referred to "Kung Fu
Fighting", "House of Exile", and "Money won't save you" when he approached his lawyer
who explained to him. Otherwise before then he had no idea. He said he does not intend to
play these records until he obtains the licence from the rightful owner. He told the court
that nobody approached him at his restaurant asking him to stop playing the records. He
said he holds about one dance a week depending on the licence allocated to him by the
police.

In cross-examination, he said on receipt of the various letters from the plaintiff, he asked
his various friends who run discos and in their case, they did not know anything of copyright
and as he was a beginner himself, he thought that these letters were some sort of a money
making racket. He said he does not remember whether he read the pamphlet sent to him.
He said he understood the word copyright to mean that you cannot manufacture the item in
question.

At the end of this witness's evidence, both learned counsel made submissions. I have very
carefully addressed my mind to the evidence in support of this claim and the defence
thereto. I have also considered the submissions. According to the evidence and pleadings, it
is not in dispute that the copyright of the musical works "Kung Fu Fighting" "House of Exile",
and "Money won't save you" vests in the plaintiff. It is also not in dispute that the defendant
is one of the proprietors of the Bar - B-Que Drive-in Restaurant. It is also not disputed that
the defendant on or about the 26th April 1976, caused to be heard in public without a valid
licence issued by the plaintiff and without the authority of the plaintiff the three musical
works. It appears also not to be in dispute that the plaintiff is entitled to royalty fees in
respect of the public performance of musical works the copyright of which is vested in them.
It also appears not to be in dispute that several letters were written by the plaintiff drawing
the attention of the defendant to the infringement of the copyright of the musical works of
the plaintiff's members. From the various letters written no specific musical works was
mentioned. It is not disputed that the three musical works cited have the origin in the UK
one of the countries listed in the schedule to the Copyright Act, Cap. 701.

The contention by the plaintiff is that, they have lost royalty fees by reason of the
defendant's refusal and or negligence to take out the plaintiff's licence. As a result, they are
claiming for an injunction to restrain the defendant by himself or its servants or agents from
causing to be heard in public at the defendants' premises the said musical works or any
other such work the copyright of which vests in the plaintiff or from authorising performance
without a licence from the plaintiff. They also ask for damages for infringement of the
copyright.

The defendant's contention is that, while it is conceded that he caused the sound recording
of the three musical works on the 26th April 1976, he did not know that copyright existed in
any of the said records. He was not aware at any time and had no reasonable grounds for
suspecting that the plaintiff were the owners of the copyright in the said sound recording. It
is further the contention of the defendant that they have no intention of causing the said
sound recording to be heard again in his establishment without the licence of the right
owner of the copyright.

It will be observed from the evidence and the documents available that the only musical
works specifically pleaded and testified to are the three records, namely, "Kung Fu
Fighting", "House of Exile" and "Money won't save you". The other musical works have not
been named and this court does not know them. The repertoire allegedly sent to the
defendant containing the other works the copyright of which is vested in the plaintiff was
not produced to this court. In the circumstances, I cannot speculate or assume that the
defendant infringed any other musical works of which the copyright vests in the plaintiff. It
will also be observed from the bundle of agreed documents that in all the letters sent to the
defendant, the three records were not mentioned. It will also be observed that nobody from
the plaintiff's side specifically told the defend ant the records whose copyright he was
infringing. According to the evidence of PW1, he visited the defendant's premises five times.
One of the visits was made on the 26th April 1976. He specifically said that on this day, he
found the three records mentioned in the pleadings being played. His evidence is not clear
as to what records were being played on the other four occasions when he visited the
defendant's premises. The nature of the claim in this action in my view depends on the
number of musical works infringed and the specific days of the infringement.

In the circumstances, I do not think it would be competent for this court to assume that on
the other four occasions, when PW1 visited the defendant's premises, it was the three
records pleaded which were being played in the absence of any evidence direct or
circumstantial.

It was also argued that the three works specifically mentioned in the pleadings were
intended to show that the plaintiff was entitled to copyright and as such, it was found not
only impracticable but impossible to have produced before the court the mountain of
documentation to establish copyright of the entire repertoire of the plaintiff. This argument,
in my view begs the question. The argument on behalf of the plaintiff as I understand it is
that, they are not primarily concerned with the quantum of damages but royalty fees. They
also seek for an injunction which must not only be in respect of the three musical works but
all the other musical works. If royalty fees are based on a number of people per dance how
does this court know that the dances at the defendant's premises involved only the
musical works of the plaintiff? If the injunction has to be in respect of all other musical
works of the plaintiff how does the court's order distinguish the plaintiff's musical works
from the other works in particular, when there is a clear admission from the defendant that
they only infringed three musical works on one day only and that they play other records
other than the three. For my part, there was nothing impracticable or even impossible for
the plaintiff to produce the repertoire and list the musical works of its members for which
they are seeking damages, royalty fees and injunction. At the least, evidence of specific
other works other than the three would have been adduced. As it is the only evidence
before me relates to three musical works which have actually been pleaded. The statement
of claim only pleads infringement of the copyright of these three works for only a day,
namely, the 26th April, 1976. On a consideration of the totality of the evidence before me, I
am satisfied and find as a fact that the defendant infringed the copyright of the three
musical works of the plaintiff for only one day as pleaded.

The defence is that, the performance was done innocently and under mistake. The
submission on behalf of the defendant was that, in matters of copyright infringement it is a
good defence that at the time of the infringement the defendant was not aware and had no
reasonable grounds for suspecting that copyright subsisted. A further submission on behalf
of the defendant is that, if the plaintiff suffered any damage, the damages should only
relate to one day as pleaded. In the circumstances, counsel for the defendant urged that the
damages should be either nominal or nil. It is conceded on behalf of the defendant in the
submissions that the granting of an injunction cannot be opposed and was never at any
stage objected to. The plaintiff's contention is that, regard being had to all the
correspondence sent to the defendant, the defence of innocence must be rejected.

The law governing copyright of musical works and others in Zambia is contained in the
Copyright Act, Cap. 701. I must confess that in my research, I have not come across any
Zambian authority based on the Copyright Act. Even in the submissions, I was not referred
to any local decided cases. Musical works under the Act is eligible for copyright.
Infringement of copyright is specifically provided for in s. 13 of the Act. Section 13 (1) reads
as follows:

"Copyright shall be infringed by any person who does, or causes any other person to
do, an act falling within the copyright without the licence of the person in whom is vested
either the whole of the copyright or, where there has been a partial assignment or partial
testamentary disposition, the relevant portion of the copyright."

In the instant case, the defendant admits that on the 26th April 1976, he did perform or
cause the performance of the three musical works without a licence.

Section 13 (2) of the Copyright Act states as follows:

"Subject to the provisions of this Act, infringements of copyright shall be actionable

at the suit of the owner of the copyright; and in any action for such an infringement all such
relief, by way of damages, injunction, accounts or otherwise, shall be available to the
plaintiff as is available in any corresponding proceedings in respect of infringement of other
proprietary rights."

The plaintiff claims in this action for an injunction, to retrain the defendant whether by
himself or by his servants or agents from infringing the plaintiff's copyright by
communicating to the public or authorising or procuring communication to the public of the
musical works "Kung Fu Fighting", "House of Exile", and "Money won't save you", or any
other musical works the copyright of which vests in the plaintiff. He also claims damages.
Section 13 (3) provides a defence to infringements of copyright. The subsection reads as
follows:

"Where in an action for infringement of copyright it is proved or admitted

(a) that an infringement was committed; but

(b) that at the time of the infringement the defendant was not aware, and had no
reasonable grounds for suspecting, that copyright subsisted in the world or other
subject-matter to which the action relates;

the plaintiff shall not be entitled under this section to any damages against the
defendant in respect of the infringement, but shall be entitled to an account of profits in
respect of the infringement whether any other relief is granted under this section or not."

In the instant proceedings, the infringement of the copyright of the three musical works for
one day only is not only proved but also admitted to have been committed. The contention
on behalf of the defendant is that, at the time of the infringement he was not aware and
had no reasonable grounds for suspecting, that copyright subsisted in the three works. The
evidence adduced by the plaintiff is that, the three musical works were never mentioned in
their correspondence to the defendant. While there is evidence that PW1 visited the
defendant's premises there is no evidence that he personally spoke to him on these
infringements.

As already mentioned, the defence raised is one of innocence. Quite clearly s. 13 (3) of Cap.
701 provides a good defence of innocence of infringements of copyright. Although there is
no decided authority in Zambia where this defence has been successfully pleaded, English
decisions based on the English Copyright Act of 1956 (although the Act is not applicable to
Zambia) have very strong persuasive value in particular, bearing in mind that the wording
of s. 13 (3) of Cap. 701 is the same as s. 17 (2) of the English Copyright Act, 1956. The
English section reads as follows:

"Where in an action for infringement of copyright it is proved or admitted

(a) that an infringement was committed, but

(b) that at the time of the infringement the defendant was not aware, and had no
reasonable grounds for suspecting, that copyright subsisted in the work or other
subject-matter to which the action relates,

the plaintiff shall not be entitled under this section to any damages against the
defendant in respect of the infringement, but shall be entitled to an account of profits in
respect of the infringement whether any other relief is granted under this section or not."

Innocence as a defence under this section has been considered in a number of English cases
reference to which will be found in Halsbury's Laws of England, 4th ed., Volume 9 at para
938, p. 602. Part of that paragraph reads as follows:

"In general, any invasion of a right of property gives a cause of action to the owner
against the person responsible for the invasion, whether it is intentional or not.
Consequently, innocence is no defence to an action for infringement of copyright or for the
conversion or detention of any infringing copy or a plate.Where, however, it is proved or
admitted in an action for infringement that an infringement was committed, but that at the
time of the infringement the defendant was not aware and had no reasonable grounds for
suspecting that copyright subsisted in the work or other subject matter to which the action
relates, the plaintiff is not entitled to damages, but is entitled to an account of profits
whether any other relief is granted or not."

On the evidence before me, I am satisfied and find as a fact that at the time of the
defendant's admitted infringement, he was not aware and had no reasonable grounds for
suspecting that copyright subsisted in the plaintiff's three musical works. This being the
case, I hold that the plaintiff is not entitled to any damages against the defendant in respect
of the infringement. The section on the other hand provides an alternative to damages in
that the plaintiff is entitled to an amount of profits in respect of the infringement whether
any other relief is granted or not.

On the defendant's admission of the infringement of the plaintiff's copyright of the three
musical works on 26th April 1976, I hold that the plaintiff is entitled to the profits made on
that day. As to quantum, I grant the parties liberty to apply in chambers. The defendant at
least from evidence does not appear to object to the injunction being granted. In the
circumstances, I grant the injunction as prayed in respect of the three musical works
pleaded. I make no order as to costs.

Delivered in open court at Lusaka this 8th day of December 1978.

Injunction granted
Order for profits

LUMANGWE WAKILABA v THE PEOPLE (1979) Z.R. 74 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
28TH NOVEMBER, 1978 AND 9TH JANUARY, 1979
S.C.Z. JUDMENT NO. 4 OF 1979

Flynote

Evidence - Confession statement - Duty of court to inquire as to objection.

Evidence - Confession statement - Voluntariness to be determined by conducting trial within
a trial notwithstanding that issue raised after close of prosecution case.

Headnote

The appellant was convicted of theft of a motor vehicle. The prosecution in its evidence
tendered two confession statements and neither the appellant nor his counsel made any
objection. The prosecution then closed its case. When giving evidence the appellant alleged
that the statements were made involuntarily. The trial magistrate refused to conduct a trial
within a trial on the ground that it was not possible since the prosecution had already closed
its case. In convicting the appellant the trial magistrate relied on these statements and
there was no other evidence to connect, the appellant with the offence.

Held:
(i) It is the duty of a court to inquire, where a point is reached at which a
witness is about to depose as to the contents of a statement, whether the
defence has any objection to that evidence being led;

Hamfuti, v The People (1), followed.

(ii) It was mandatory for the trial magistrate after the issue of voluntariness had
been raised to conduct a trial within a trial notwithstanding that the
prosecution had already closed its case.

Cases referred to:

(1) Hamfuti v The People (1972) Z.R. 240

(2) Kasuba v The People (1975) Z.R. 274.
(3) Tapisha v The People (1973) Z.R. 222.

For the appellant: In person.

For the respondents: Mrs M. Makhubalo, State Advocate.

Judgment

BRUCE-LYLE, J.S.: delivered the judgment of the court.

The appellant was convicted of them of motor vehicle and he appealed against the
conviction and sentence. On the 18th November,1978, we allowed the appeal against the
conviction and ordered a re-trial and we now give our reasons for so doing.

Appellant was suspected of having been involved in the theft of a motor vehicle on the 15th
December,1976, and was picked up by the police on the 19th April, 1977. Under warn and
caution, the appellant admitted having stolen the vehicle with other friends. When that
statement was tendered at the trial, the appellant did not object and it was admitted in
evidence. When he was formally charged, warned and cautioned, he again admitted the
offence and this statement was read at the trial without the learned trial magistrate
ascertaining from the appellant whether or not he had any objection to the statement being
read. When the appellant was put on his defence he made an unsworn statement from the
dock in which he stated that he was beaten up and forced to admit the offence. Apart from
the two confession statements, there was no other evidence connecting the appellant with
the offence and the learned trial magistrate relied on these statements in convicting the
appellant.

On the record it is shown that the appellant did not object to the first statement being
tendered in evidence but there is nothing to show that it was explained to him as to why he
was being asked whether or not he had any objection. In Hamfuti v The People(1), this
court laid down the principle that whether or not an accused person is represented, a trial
court should always, when the point is reached at which a witness is about to depose as to
the contents of a statement, ask whether the defence has any objection to that evidence
being led. The same principle was followed in Kasuba v The People (2). When an accused
person is represented, his counsel would no doubt be aware of the implications involved in
the question from the bench as to whether or not he has any objection to a statement being
tendered in advance. When an accused person is not represented at his trial it is not
sufficient simply to ask him whether or not he has any objection to a confession or an
incriminating statement being tendered in evidence, but he should be asked in a language
which he appears to understand if the statement was made freely and voluntarily and
without threats or promises. By his subsequent unsworn statement from the dock, the
appellant obviously had in mind to inform the court that he had been beaten into confessing
to the offence, and no doubt if the necessary explanation had been made to him by the
court he would have intimated the circumstances under which he made the alleged
confession statements

Appellant in his unsworn statement from the dock stated that he was beaten up and forced
to admit the charge. No trial within a trial was ordered and the learned trial magistrate gave
the following reasons:

"When the accused denied that he had made the statement to the police freely and
voluntarily after the prosecution had closed its case, it was therefore not possible to have a
trial within a trial."

In the case of Tapisha v The People (3), we stated:

"Where any question arises as to the voluntariness of a statement or any part of it,
including the signature, then because voluntariness is, as a matter of law, a condition
precedent to the admissibility of the statement, this issue must be decided as a preliminary
one by means of a trial within a trial."

It was therefore mandatory that, a preliminary issue of voluntariness having been raised by
the appellant, the learned trial magistrate should have conducted a trial within a trial
notwithstanding that the issue was raised after the close of the prosecution case. A trial
within a trial not having been conducted and the issue of voluntariness not having been
resolved, the learned trial magistrate misdirected himself in having relied on the confession
statements to convict.

There being no other evidence connecting the appellant with the offence we found the
conviction unsafe, but we considered this a proper case in which to order a re-trial.

Re-trial ordered

ZAMBIA PUBLISHING CO LTD v ELIYA MWANZA (1979) Z.R. 76 (S.C.)

SUPREME COURT
GARDNER, BRUCE-LYLE, JJ.S., AND CULLILAN, A.J.S.
18TH JANUARY AND 6TH FEBRUARY, 1979
S.C.Z. JUDGMENT NO. 7 OF 1979

Flynote
Damages - Compensatory damages - Award in libel cases.
Civil procedure - Pleadings - Exemplary damages - Whether required to be specifically
pleaded.
Tort - Defamation - Imputation of dishonesty - Allegation of drawing a salary which one is
not entitled to - Whether defamatory - Imputation of dishonesty when one is holding a
particular office which he has since left - Award of damages.

Headnote

This was an appeal by the defendant against an award of the sum of K15,000 damages for
libel. The alleged libel was contained in an article published in the defendant's newspaper. It
alleged that the plaintiff was drawing salaries after he had resigned from the post, and
secondly that he resigned because someone else was made Acting General Secretary
instead of himself being appointed.

The plaintiff contended that he was still the Assistant General Secretary and that the words
complained of were published about him in the way of his said office. He further contended
that the words were understood to mean that the plaintiff unjustly and dishonestly
continued to recede salaries after he had resigned and that he resigned because of jealousy
for not being appointed to the post of Acting General Secretary. The defendant argued inter
alia that the judge erred in taking into account sufferings, mental anguish and social
isolation since these were not pleaded.

Held:
(i) Exemplary damages must be specifically pleaded.

(ii) To impute dishonesty of a man when he is holding a particular office which he

has since left is still defamatory of him in general but damages in relation to
that office fall away.

(iii) To publish of a man that he has drawn a salary to which he is not entitled
indicates in the context of the article complained of that he was doing so
dishonestly and the imputation is clearly defamatory.

(iv) injury to reputation and natural hurt to feelings need not be pleaded or
proved.

(v) The award of K15,000 compensatory damages was high taking into account
the circumstances of the case. An award of K7,500 would be appropriate.

Cases referred to:

(1) Zambia Publishing Co. Ltd v Kapwepwe (1974) Z.R. 294.

(2) Cobbett - Tribe v Zambia Publishing Co. Ltd (1973) Z.R. 9.
(3) Cassell v Broom, [1972] 1 All E.R. 801.
(4) Flint v Lovell, [1934] All E.R. 200.

For the appellant: M.S. Banda, Jaques & Partners.

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

GARDNER, J.S.: This is an appeal by the defendant against an award by the High Court of
the sum of K15,000 damages for libel.

The alleged libel was contained in a newspaper article published in the defendant's
newspaper on the 14th December 1974. The words complained of were published under the
heading "ZRAWU accused of payment scandal" and continued:

"The Zambia Railways Amalgamated Workers' Union (ZRAWU) head office has again
been put to trick by its own executive committee. This time, it has been accused of paying
salaries to a top union official who resigned from the Union five months ago . . .
. . . members have been complaining about Mr Mwanza's salaries since he resigned
last July . . .
According to the ZRAWU executive sources, Mr Mwanza resigned in July this year
immediately after Mr Ananiya Simwanza, general secretary was seconded to the Combined
Union Stores in Kitwe. Instead of the union appointing Mr Mwanza as acting general
secretary, they brought the national president Mr Reggie Nkonde from Lusaka to the head
office in Kabwe to act while Mt Simwanza was in Kitwe managing the Union Store
temporarily. This action is believed to have annoyed Mr Mwanza so much that he resigned
his union post."

The statement of claim set out that the plaintiff was at all material times Assistant General
Secretary of ZRAWU and that the defendant had falsely and maliciously printed and
published about the plaintiff and of him in the way of his said office the words complained
of; it was claimed that the words within the general context of the article were meant and
were understood to mean that the plaintiff had resigned in July, 1974, when he had not
done so and that having resigned he unjustly and/or corruptly continued to receive salaries
to which he was not entitled for a period of at least five months. It was further claimed that
the words meant and were undertstood to mean that the plaintiff was disloyal to his union
and fellow comrades and was doing a disservice to his union by refusing to serve it due to
petty jealousy and a personal grudge against Mr Reggie Nkonde. The final paragraph of the
statement of claim read as follows:

"(5) The plaintiff has in consequence been seriously injured in his character, credit
and reputation and in the way of his said office, has been brought into public scandal, odium
and contempt. AND the plaintiff claims damages".

There was evidence to the effect that the plaintiff was Assistant Secretary in ZRAWU and
resigned from that position on the 13th of December,1974. The day after his resignation the
offending article was published by the defendant.

There was also evidence that the plaintiff was an active and highly respected member of the
community having been, inter alia, Manager of the Zambia National Football Team,
Chairman of Kabwe Warriors (a well known Zambian football team), a senior and active
leader in the Reformed Church of Zambia in Kabwe, Chairman of the PTA of Mwashi School
and a businessman. In his capacity as Chairman of the Zambia National Football Team he
travelled widely with the team and his name was much publicised so that he was known
throughout the country.

The plaintiff said, that, after the article was published, even his own wife and family insulted
him. There was also evidence that the plastic was suspended from the committee of elders
of his church as a result of the published article and the plaintiff lost his position as
Chairman of the Kabwe Warriors team and ceased to be a Manager of the Zambia National
team because doubts were raised about his integrity.

The defendant did not call any evidence but relied upon the argument that the article was
not defamatory of the plaintiff because by letter dated the 16th of September,1974, the
plaintiff had given notice to , ZRAWU that he intended to resign at the end of October,
1974. Although this letter was in fact written there was no dispute about the fact that the
plaintiff's actual date of resignation was the 13th of December,1974, and it was quite clear
from the evidence that it was untrue to say that he had resigned in July and drawn a salary
for five months without working.

On the 17th of December 1974, the plaintiff's solicitors wrote to the defendant pointing out
the inaccuracy of the article and requesting an apology; despite further reminders no
apology was forthcoming, and writ was issued.

The learned trial judge in his judgment found that the statement that the plaintiff had
received salary to which he was not entitled was clearly defamatory and its publication
damaged the reputation of the plaintiff. The learned judge went on to say:

"He was shunned avoided and ridiculed at times and to make matters worse insulted
by his own wife and members of his own family . . . On the question of damages I find that
the suffering, mental anguish, social isolation and other attendant matters have to be taken
into account."

He then awarded K15,000 damages.

On behalf of the defendant, Mr Banda argued three grounds of appeal which could be
summarised as followers:

(1) that in assessing damages the learned trial judge failed to consider fully the
various judgments of the Supreme Court, and in particular Zambia Publishing Co. Ltd. v
Kapwepwe (1);
(2) that the learned trial judge misdirected himself by taking into account the
damage to the plaintiff in his office of Assisting Secretary to ZRAWU when in fact at the time
of the publication the plaintiff no longer held that office;
(3) that by taking into account the sufferings, mental anguish, social isolation and
other attendant matters, the learned trial judge misdirected himself because no such
matters were pleaded in the statement of claim;
(4) that the words complained of were not defamatory in that they were at least
partially true because the plaintiff had given notice of his intention to resign from Union by
the end of October 1974.

Mr Yousuf, on behalf of the plaintiff, argued that the award of K15,000 should not be
reduced, having regard to the high public esteem of the plaintiff compared with the
claimants in the cases of Zambia Publishing Co. Ltd v Kapwepwe (1), and Cobbett - Tribe v
Zambia Publishing Co. Ltd (2), and having regard to the decline in the value of money since
those cases were decided. He also argued that, in all cases claiming general damages for
libel, it is proper for courts to take into account mental suffering, pain of a false accusation
and mental pain or anxiety, as referred to in McGregor on Damages, 13th ed. para 1300,
and that these considerations were covered by the pleadings which claimed that the plaintiff
had been seriously injured in his character, credit and reputation. As to the question of
whether or not the words complained of were defamatory, Mr Yousuf forcefully argued that
to accuse a man of dishonestly receiving a salary for five months for doing no work was an
imputation of dishonesty and clearly defamatory as found by the learned trial judge.

During the course of the appeal the question arose as to whether this court, if it were to set
aside the award of K15,000 damages, which was not defined and, therefore, accepted as
being compensatory only, could take into account the conduct of the defendant in
considering whether or not exemplary damages could be awarded by this court. In the
event this question is answered by R.S.C.O. 18, r. 8 (3) of the English Supreme Court
Practice 1976 (the White Book) which provides, by an amendment which came into force on
the 1st of January, 1973, as follows:

"(3) A claim for exemplary damages must be specifically pleaded together with the
facts on which the party pleading relies."

Although this amendment was probably introduced as a result of the decision of the House
of Lords in the case of Cassell v Broom (3), which limited the circumstances in which
exemplary damages could be claimed to three specific categories, and, although this court
in Zambia Publishing Co. Ltd v Kapwepwe (1) disagreed with that case so far as it imposed
a limited number of categories, the amended rule still applies to pleadings in this country
under the provisions of the High Court Act, Cap. 50, s. 10. In this case a claim for
exemplary damages was not included in the statement of claim and therefore such damages
cannot be considered.

In arguing his second ground of appeal, which was dealt with as ground (1) in his heads of
argument, Mr Banda quoted from Gatley on Libel and Slander, 7th ed. para. 168, which
indicates that words which are calculated to disparage the reputation of the plaintiff in the
way of any office held by him are actionable without proof of special damages but in such
cases the plaintiff must have held the office at the time when the words complained of were
published. The paragraph in question deals with cases of slander which are actionable per
se. The case before us is one of libel and in the words of the learned editor of Gatley on
Libel and Slander at para. 143 "If the plaintiff proves that a libel has been published of him
his cause of action is complete." As a general argument of course, it could be said that
when, as in this case, the plaintiff has resigned from his office before the publication of the
offending words, his damages in relation to that office fall away. However, to impute
dishonesty of a man when he was holding a particular office, which he has since left, is still
defamatory of him in general.

I now have to consider my view of the judge's finding that the words used were defamatory
of the plaintiff. To say of a man that he has for five months, or indeed for any other period,
been drawing a salary to which he is not entitled indicates in the context of the article
complained of that he was doing so dishonestly, and I have no hesitation in agreeing with
the learned trial judge that this imputation was clearly defamatory. The defendant did not
put forward a defence that the words were true and, on the evidence, they were quite
plainly untrue. The argument that the article was partially true has no merit whatsoever.
The plaintiff did not resign in October as he originally intended to do; but, most
importantly, he never at any time drew pay for a period during which he did not work. No
other defence has been pleaded and the learned trial judge rightly found that the plaintiff
was entitled to damages for libel.

In dealing with Mr Banda's ground of appeal to the effect that the learned trial judge should
not have considered "the sufferings, mental anguish, social isolation and other attendant
matters", I agree with Mr Yousuf that these considerations should properly be taken into
account by any court considering damages for defamation in the light of the principles laid
down in the cases referred to in para. 1300 of McGregor on Damages, 13th ed. and,
although they may not be entirely covered by the words "injured in his character, credit and
reputation", as set out in the statement of claim, I infer, from the comments of the learned
editor of Atkins Court Forms, 2nd ed. (1975 issue), Vol. 25 at p. 72, that injury to
reputation and natural hurt to feelings need not be pleaded or proved. I say that I infer this
because the text specifically states that injury to reputation need not be pleaded or proved.
This is followed immediately by a reference to natural hurt to feelings without any reference
to necessity to plead and, thereafter, there is discussion on the necessity to plead
aggravated damages, wherein the text states that it is apparently not essential to plead the
facts of aggravated damages but indicates that it is desirable to do so. I would hold,
therefore, that the learned trial judge did not misdirect himself when he took into account
mental anguish and other associated matters.

I come now to the question of the quantum of the awarded sum. As I have already pointed
out, the reference, in the statement of claim and in the argument, to the damage to the
plaintiff's reputation in his office is not strictly relevant in the case of libel, but the general
allegation his dishonesty in that office obviously affects his reputation in relation to any
other office to which he may aspire in the future. I have taken note of the fact that in the
case of Cobbett - Tribe v Zambia Publishing Co. Ltd (2), the claimant, who was a practising
advocate and Vice - President of the Law Society of Zambia, was accused in a newspaper of
being one of a "bunch of ignorant lawyers who hardly understand the law and are fortune
seekers".Doyle,C.J., in that case had no hesitation in finding that the words were
defamatory and awarded the sum of K2,000 compensatory damages. This award was
made in January, 1973. Subsequently, other cases have been decided in connection with
appropriate damages for defamation, and in particular the case of Zambia Publishing Co.
Ltd v Kapwepwe (1). In that case compensatory damages of K15,000 were awarded for the
publication of a cartoon indicating that the claimant was tribalistic and was in the pay of a
foreign country opposed to the interests of Zambia. There was also a claim on account of an
allegation that the cartoon depicted the claimant as a weak man. This court rejected the
latter claim; but, in any event, Doyle CJ, held that the award was entirely excessive. The
other two members of the court agreed with him and the award for compensatory damages
was reduced to K7,500.

In considering the powers of this court to interfere with the assessment of damages by a
judge sitting alone I have referred to the well established authority of the case of Flint v
Lovell (4), in which Greer, L.J., said at p. 202:

"This court will be disinclined to reverse the finding of a trial judge as to the amount
of damages merely because they think that if they had tried the case in the first instance
they would have given a lesser sum. In order to justify reversing the trial judge on the
question of the amount of damages it will generally be necessary that this court should be
convinced either that the judge acted upon some wrong principle of law, or that the amount
awarded was so extremely high or so very small as to make it, in the judgment of this
court, an entirely erroneous estimate of the damages to which the plaintiff is entitled."

With respect I entirely agree with that statement of principle and indeed, it has been
followed with full approval since it was first made. I have also considered Mr Yousuf's
arguments that in the case at present before us the plaintiff was a highly respected figure in
the community because of his association with nations sporting bodies and was known
throughout the country as a man of high reputation; that the plaintiff in the Cobbett - Tribe
case (2), although a highly respected member of the community was known to fewer people
than the present plaintiff, and that the claimant in the Kapwepwe case (1) was, although
known through out the country, of high repute only to a limited number of the community. I
have also taken into account the declining value of money since the authorities in 1972 and
1974 to which I have referred. Despite these considerations however, I am bound to say
that I find that the award of K15,000 compensatory damages as being so extremely high as
to be an entirely erroneous estimate of the damages to which the plaintiff is entitled. For
this reason I would set aside the award made by the learned trial judge and assess a new
award after taking into account the plaintiff's high reputation, the actual results of the libel
and the potential results of the libel. I would also take into account the nature of the libel
and the imputation of dishonesty as compared with the imputations contained in the other
cases to which I have referred.

During the course of the appeal it was drawn to our attention that, although an apology was
requested from the defendant, it did not seek the protection of s. 12 of the Defamation Act,
Cap. 70, by publishing such an apology. In my view, apart from the fact that there is no
mitigation of damages, this is an aggravating factor to be taken into account and I would
accordingly award compensatory damages in the sum of K7,500.

The appeal should be allowed, the award of K15,000 damages set aside and, in its place,
there should be substituted an award of K7,500 compensatory damages. The plaintiff
having been successful in the court below, the order for costs in that court should stand.
The defendant having been a successful appellant in this court should be awarded the costs
of this appeal.

Appeal allowed

LABSON ZIMBA v THE ATTORNEY-GENERAL (1979) Z.R. 83 (H.C.)

HIGH COURT
HADDEN, J.
23RD FEBRUARY 1979
1978/HP/845

Flynote

Administrative law - Certiorari - Registration of Societies - Refusal by Registrar to register

society on ground that interest and welfare of country will be prejudiced - Obligation to give
applicant reasons for refusal and opportunity to be heard.
Societies - Registration - Refusal to register - Societies Act, Cap. 105, s. 8.

Headnote

The applicant applied for the registration as a society of the Mutendere Branch of Jerusalem
Church. The registrar refused the application on the ground that the interest of the peace,
welfare or good order in Zambia would be likely to suffer prejudice. The said refusal was
upheld on appeal to the minister. The applicant applied for an order of certiorari to remove
into the High Court for the purpose of quashing the decision of the registrar. He submitted
that he was not accorded an opportunity to be heard when the application and appeal were
considered and secondly that the reason for the refusal was without merit.

Held:
 (i) Under s. 8 of the Societies Act, the registrar may refuse to register or exempt
from registration on the grounds that the society has among its objects or is
likely to pursue or be used for any unlawful purpose or for any purpose
prejudicial to or incompatible with the peace, welfare or good order in
Zambia, and if he properly refuses the application on the above grounds, such
refusal would not be a violation of the applicant's rights under the
Constitution.

(ii) The registrar was under a statutory duty to have regard to certain criteria. He
had to determine whether the interest of peace, welfare or good order in
Zambia would be likely to suffer prejudice. There was a duty on him to act
fairly and this required him, on considering the statutory grounds upon which
he could refuse registration to give the applicant sufficient indication of any
relevant objection raised against him to enable him to meet such objection
without necessarily disclosing his source of information.

Cases referred to:

(1) Ross - Clunis v Papadopoullos and Others, [1958] 1 W.L.R. 546.

(2) McInnes v Onslow Fane and Another [1978] 3 All E.R. 211.
(3) Nagle v Feilden., [1966] 1 All E.R. 689.
(4) R v Gaming Board for Great Britain, ex parte Benaim, [1970] 2 All E.R. 528.
(5) Re K(H) (an infant), [1967] 1 All E.R. 226.

Legislation referred to:

Constitution of Zambia, Cap. 1 Arts. 21, 22, 23.

Societies Act, Cap. 105, ss. 8, 9

For the applicant: H Silweya, Messrs Silweya & Co.

For the respondent: No appearance.

Judgment

HADDEN, J.: This is an application for an order of certiorari to remove into the High Court
for the purpose of quashing a decision of the Registrar of Societies in refusing an application
by the applicant to register as a society the Mutendere Branch of Jerusalem Church, the said
refusal being upheld on appeal to the minister. Leave to apply was granted on the 19th
July,1978. There was no appearance by the respondent.

The applicant submitted to the Registrar of Societies an application for the registration of a
society to be known as Jerusalem Church, Mutendere Branch, on the 30th September,
1976, the objects of the society being to preach the words of God. The registrar, by a notice
dated the 3rd October,1977, refused to register the society on the ground that "the interest
of the peace, welfare or good order in Zambia would otherwise be likely to suffer prejudice
by reason of the registration, or exemption from registration, of this society." An appeal was
submitted to the minister who on the 24th May, 1978, notified the applicant's advocates
that he refused to rescind the earlier decision. This application seeks to quash the decision
to refuse registration and is based on the following grounds:

(1) the applicant was not afforded the opportunity of being heard when the application
and appeal were considered: and
(2) the reason for refusing registration is without merit.

After having submitted the application for registration on the 30th September 1976, the
applicant received notification that the registrar refused to register the society in a
document dated the 3rd October,1977, which reads:
"REPUBLIC OF ZAMBIA
ORS/102/66/202

THE SOCIETIES RULES

NOTIFICATION OF REFUSAL TO REGISTER A SOCIETY
To Mutendere Branch of New Jerusalem Church (name of Society)
I hereby give you notice that, in exercise of the powers conferred on me by Action
*8/9 of the Societies Act, I have this day refused to register you as a society under the said
Act on the grounds that the interest of the peace, welfare or good order in Zambia would
otherwise be likely to suffer prejudice by reason of the registration, or exemption from
registration of this society. Any appeal to the Minister against this refusal must be delivered
to the Permanent Secretary within twenty-one days.

Dated at Lusaka the 3rd day of October, 1977.

(sgd: CL Masosa),
Registrar of Societies"

A similar document, dated the 25th January 1978, was received by the Kitwe Branch of the
society.

On the 14th March, the applicant, through his advocates, appealed to the minister and the
appeal was supported by a memorandum outlining the background to the appeal and
setting forth arguments in support of the appeal, both in fact and in law. Neither the
applicant nor his advocate made oral representations to the minister when the appeal was
considered, the applicant's advocates having been advised that it was not necessary to
appear. The dismissal of the appeal was communicated to the applicant's advocates by a
letter dated the 24th May, 1978, in the following terms:

In reply please quote:

MHA/ORS/102/66/202

REPUBLIC OF ZAMBIA MINISTRY OF HOME AFFAIRS

Old Secretariat
Independence Avenue
P.O. Box 1862
Lusaka
24th May,1978

Messrs Silweya and Company,

P.O. Box 4426
Lusaka
Dear Sirs,
 NEW JERUSALEM CHURCH LED BY LABSON ZIMBIA:S. 16 OF CAP 105

1. I refer to your letter reference HS/HM/N3 dated 6th March, 1978 regarding the
above subject, whose receipt my Permanent Secretary briefly acknowledge on 17th March
1978.
2. I wish to inform you that the refusal to register this Society was based on the
ground that the registration of the Society would not be in the interest of Law and Order in
this country.
3. It has not been found possible, in these circumstances, to rescind the earlier
decision.

Yours faithfully,
(sgd.: W.J. Phiri)
W J Phiri, MP,
Minister"

The constitution of the Jerusalem Church, which accompanied the application for
registration, contain provision for the disciplining of its members in certain circumstances,
and requires the church to obtain permission from Government before any conferences are
held.

For the applicant Mr Silweya points out that Articles XXI, XXII and XXIII of the Constitution
of Zambia provide that the applicant cannot be hindered in the enjoyment of his freedom of
conscience, which freedom includes that of religion, or of his freedom of expression or of
assembly and association. The society, it is submitted, could not prejudice the peace and
good order of the country and it is suggested that the reason why registration was refused
was because of court proceedings that resulted in the conviction of nine members of the
church for the offence of holding an unlawful assembly, after the application for registration
had been lodged but before it had been refused. It is also submitted that the applicant was
not given an opportunity of being heard either when the application was first considered by
the registrar nor when the appeal was determined by the minister, nor was he notified of
any information available to the registrar and minister that would have had had a bearing
on the application so that he would have had an opportunity of meeting it.

Although the Constitution guarantees the rights of freedom of conscience, expression,

assembly and of association, these rights are subject to the qualification that nothing
contained in or done under the authority of any law shall be inconsistent with or in
contravention of such rights to the extent that it is shown that the law in question makes
provision which is reasonably required in the interest of defence, public safety, public order,
public morality or public health. Similar restrictions to the right to have a society registered
are contained in s. 8 of the Societies Act:

"The Registrar may refuse to register and shall not exempt from registration any
society where it appears to him that such society has among its objects, or is likely to
pursue or to be used for, any unlawful purpose or for any purpose prejudicial to or
incompatible with the peace, welfare or good order in Zambia, or that the interests of the
peace, welfare or good order in Zambia would otherwise be likely to suffer prejudice by
reason of the registration or exemption from registration, of such society."

It follows that provided the registrar properly refused the application on grounds contained
in s. 8, such refusal would not be a violation of the applicant's rights under the Constitution.
The Societies Act requires the registrar, subject to the provisions of the Act, to register a
society upon application being made for its registration; s. 8 contains grounds upon which
the registrar may refuse registration where it appears to him that the section applies, and
the applicant submits that there was no evidence to show that any of the grounds set out in
the section did in fact apply. The applicant relies on Ross - Clunis v Papadopoullos and
Others (1), where the Commissioner for Limassol, after holding an inquiry, made an order
under the Emergency Powers Order in Council, 1939, imposing a collective fine on the
inhabitants of Limassol. It was contended on behalf of the inhabitants that there was no
evidence before the court to show that there were any grounds upon which the
commissioner was able to satisfy himself that the inhabitants were given an adequate
opportunity of understanding the subject-matter of the inquiry and in making
representations thereon Lord Morton of Henryto in delivering the judgment of the Privy
Council, said at p. 560:

"The last contention of counsel for the respondents was that the Commissioner had
failed to comply with regulation 5(1) and (2). In their Lordships' opinion the only question of
substance arising under this contention is the question whether the appellant discharged the
positive duty cast upon him to 'satisfy himself that the inhabitants of the said area are given
adequate opportunity of understanding the subject-matter of the inquiry and making
representations thereon.' Mr MacKenna, for the appellant, submitted that the only duty cast
upon the appellant was to satisfy himself of these facts; that the test was a subjective one,
and the statement in paragraph 12 of the appellant's affidavit of December 4, 1956
(already quoted), was a complete answer to the argument of counsel for the respondents,
unless it could be shown that the statement in the affidavit was not made in good faith, and
bad faith was not alleged.
Their Lordships feel the force of this argument, but they think that if it could be
shown that there were no grounds upon which the Commissioner could be so satisfied, a
court might infer either that he did not honestly form that view or that in forming it he could
not have applied his mind to the relevant facts. In the 20 present case, however, there
were ample grounds upon which the appellant could feel satisfied of the matters mentioned
in regulation 5 (2)."

Although the court might infer that the registrar did not act honestly in refusing registration
or did not apply his mind to the relevant facts, the memorandum submitted to the minister
indicates that at one time the applicant was a member of the banned Lumpa Church, and
although he disclaims any present adherence to that faith, this information dispels any
inference that the court might otherwise reach.

Megarry, V.C., in McInnes v Onslow Fane and Another (2), which report was not available at
the hearing of these proceedings, dismissed an application for a declaration that the refusal
to grant the plaintiff a boxing manager's licence was unlawful as there was no adequate
reason for file refusal, and for a declaration that the defendant acted in breach of natural
justice or unfairly in failing to inform the applicant of the case against him, so that he could
answer it before his application was considered or be granted on oral hearing. The court was
able to distinguish at least three categories of the type of decision that could be made, in
respect of each of which different principles of the rules of natural justice, or of fairness,
apply. There are forfeiture cases, where a decision takes away an existing right or
position; there are application cases, where the decision refuses the right or position that
the applicant seeks; finally, there are expectation cases where the decision, refuses some
legitimate expectation from what has already happened that the application will be granted.
An example of a forfeiture case is where a licence is revoked, or membership of a club
withdrawn; an application case would be where application is made for the issue of a licence
or for membership of a club; an expectation case is where the application is for the renewal
of a licence or renewal of membership of a club. The applicant in these proceedings has not
had any right forfeited nor can it be said that he had the legitimate expectation from what
had already happened that any right would be granted. The decision falls into the category
of an application case and the requirements of natural justice, or fairness, that have to be
applied to such decisions should have been applied to this application.

In McInnes (2), there were no provision of any statute or contact which conferred any right
on the plaintiff to a manager's licence; in the case of the applicant in these proceedings
there was a duty on the registrar to register the society unless he exercised his discretion
under s. 8. or was obliged to refuse registration under s. 9. In considering whether there
was an obligation to give reasons for a decision or a duty to provide an applicant with
information of the case against him, Megarry, V-C, in McInnes (2), at p. 219 said:

"I think it is clear that there is no general obligation to give reasons for a decision.
Certainly in an application case where there are no statutory or contractual requirements
but a simple discretion in the licensing body there is no obligation on that body to give their
reasons. In Nagle v Feilden (3), to which I have already referred, Salmon, L.J., made this
plain. The point is also carried by R v Gaming Board of Great Britain, ex parte Benaim (1).
In the latter case, the Gaming Board were under a statutory obligation to have regard only
to certain criteria. For this purpose the board were under a statutory obligation to take into
consideration in particular 'the character, reputation and financial standing' of the applicants
(and of certain other persons) for what in effect was the certificate of fitness that was
requisite on application for a licence. The Court of Appeal held that the board were under a
duty to act fairly which required the board to give the applicants a sufficient indication of
any relevant objections raised against them to enable the applicants to meet them. On the
other hand, the board need not reveal the details or the sources of the information, nor
when the board came to decide the application need the board give any reasons. The board
had exercised their statutory power to regulate their procedure, and under the procedure
that the board had adopted they gave the applicants a hearing at which the board revealed
in outline what was troubling them. The applicants were then given the opportunity of
making further representations in writing before the application was decided; and the Court
of Appeal held that this procedure satisfied the duty of the board to act fairly which flowed
from the statutory obligation of the board to 'have regard only' to the specified
matters.Counsel for the plaintiff, of course, relied on this decision. He also relied on Re K
(H)(an infant) (5).There the question was whether an immigrant was under 16 years old,
and so, as the son of a Commonwealth citizen ordinarily resident in the United Kingdom,
had a statutory right of entry into the United Kingdom. Lord Parker,C.J., held that the
immigration officer was under a duty to give the immigrant an opportunity, of satisfying him
of the matters in the relevant subsection, and for that purpose to let him know what his
immediate impression was so that the immigrant could disabuse him. On the facts, it was
held that this duty had been discharged. These causes seem to me to be very different from
the case before me. In each there was a statute which conferred the power and the duty to
decide on some defined issue. Here there is no statute and no defined issue but merely a
general discretion. In the Gaming Board case (4), the character, reputation and financial
standing of the applicants was in issue, so that the refusal of the certificate of fitness would
be a slur on the applicants. In Re K(H)(an infant) (5), the question was whether or not the
immigrant had a statutory right of entry. Here, there is no statutory or, indeed, any other
true right; and certainly the refusal of a licence by no means necessarily puts any slur on
the plaintiff's character. There are many reasons why a licence night be refused to an
applicant of complete integrity, high repute and financial stability. Some may be wholly
unconnected with the applicant, as where there are already too many licensees for the good
of boxing under existing conditions. Others will relate to the applicant. They may be
discreditable to him, as where he is dishonest or drunkard; or they may be free from
discredit, as where he suffers from physical or mental ill-health, or is too young, or too
inexperienced, or too old, or simply lacks the personality or strength of character required
for what no doubt may be an exacting occupation. There may be 'no case against him' at
all, in the sense of some thing warranting forfeiture or expulsion; instead, there may simply
be the absence of enough in favour of granting the licence. Indeed, in most cases the more
demanding and responsible the occupation for which the licence is required, the greater will
be the part likely to be played by considerations of the general suitability of the applicant,
as distinct from the mere absence of moral or other blemishes. The more important these
general considerations are, the less appropriate does it appear to be to require the
licensing body to indicate to the applicant the nature of the 'case against him'. I think that
this applies in the present case."

As in the case of R v Gaming Board for Great Britain, ex parte Benaim (4), the registrar was
under a statutory duty to have regard to certain criteria; he had to determine whether the
interests of peace, welfare or good order in Zambia would be likely to super prejudice.
There was a duty on the registrar to act fairly and this required him, in considering the
statutory grounds upon which he could refuse registration, to give the applicant a sufficient
indication of any relevant objection raised against him to enable him to meet such objection
without of, course, necessarily disclosing his source of information. As the applicant was not
provided with this information or opportunity, the refusal to register by the registrar and the
subsequent decision on appeal must be set aside.

The order of the court is that the proceedings regarding the application to the registrar and
those on appeal be removed into the High Court for Zambia to be quashed forthwith.

Application granted

PHIRI (A.I.) v BANDA (J.C.) 1979 Z.R. 90 (H.C.)

HIGH COURT
CULLINAN, J.
5TH FEBRUARY, 1979
1978/HP/EP3

Flynote

Election petition - Commission of illegal practice - Primary election - Whether Electoral Act,
Cap. 19, s. 17, refers to it - Whether High Court has jurisdiction to question primary
election.

Election petition - Primary election - Commission of illegal practice - Whether action can
only be brought if guilty party is actually elected as Member of Parliament - Whether
legislation intended delay in presenting petitions until after final election.

Election petition - Election of candidate as member - Meaning of word "member" - Whether

it restricts petitions to final elections.

Headnote
Both the petitioner and the respondent were candidates in the National Assembly primary
election for the Chipata Constituency held on 19th October, 1978. The respondent and
two other candidates received the greatest number of votes and qualified to the final
elections where the respondent was subsequently elected to the National Assembly. The
petition presented before such election alleging the Commissiner of an illegal practice by the
respondent or his election agent at the primary election was based on s. 17 of the Electoral
Act, Cap. 19.

Held:
(i) An election petition may be presented questioning the result of a primary
election in respect of a candidate who is elected as a member of the National
Assembly later before the final election because it would be absurd if election
petition only applied to final elections since a member of Parliament, guilty of
an illegal practice at the primary election, would be allowed to retain his seat.
Both the primary and final elections are part of one process, and the
candidate must qualify in the primary election in order to proceed to the final
elections. Allowing a person guilty of an illegal practice to proceed to the
final election bars other possible candidates and only leads to extra expense
of having to hold another election later.

(ii) Article 77 of the 1973 Constitution does confer jurisdiction upon the High
Court to entertain petitions questioning primary elections.

(iii) The legislature's intention was that an election petition questioning the result
ofa primary election must be presented within thirty days of notification of
such result in order to avoid absurdities. The court has jurisdiction to hear
such petition irrespective of whether the respondent is elected as a member
at the final election.

Case referred to:

(1) DPP v Ng'andu and Ors (1975) Z.R. 253.

Legislation referred to:

Constitution of Zambia, 1964, Arts 67, 68, 69.

Constitution of Zambia, 1973, Cap. 1, Arts 68, 71, 75 (1), (4), (5), 77, 109.
Electoral Act, 1968, Part VI, s. 16.
Electoral Act, 1973, Cap. 19, ss. 5 (1), 7, 8 (3), 17, 18 (c), 19, 20, 28.
Electoral (National Assembly Elections) Regulations, Cap. 19, reg. 8.

For the petitioner: R.M.A. Chongwe, R.M.A. Chongwe & Co.

For the respondent: S. Patel, Solly Patel, Hamir & Lawrence.

Judgment

CULLINAN, J.: The petitioner was a candidate in the National Assembly primary election for
the Chipata Constituency held on 19th October 1978, after which, in due course, the
respondent and two other candidates, having received the greatest number of votes
pursuant to Art. 75 (5) of the Constitution, qualified for nomination as candidates for the
final election. The respondent was subsequently elected to the National Assembly at the
final election. The petition, presented before such election, alleging the commission of an
illegal practice by the respondent or his election agent at the primary election, is based on
the provisions of s. 17 (2) (c) of the Electoral Act, Cap. 19, which find their origin in Art.
77 of the Constitution which in part reads:

"77. (1) The High Court shall have jurisdiction to hear and determine any question whether
-
(a) any person has been validly elected or appointed as a member of the National
Assembly or the seat of any such member has become vacant;".

Those provisions are a verbatim repetition of the relevant provisions contained Art. 69 of
the 1964 Constitution, under which the Electoral Act 1968 was framed. The 1973
Constitution introduced the two-tier system of primary and final National Assembly
elections, and following upon that the Electoral Act, 1973 (Cap. 19) subsequently repealed
and replaced the 1968 Act. There is no significant difference between the long title of each
Act. The provisions of Part VI of the 1968 Act, dealing solely with election petitions, were
repeated - with one modification to s. 19 (4) s. 20 (4) in Cap. 19 of the 1970 Ed. of the
Laws) concerning the time limit for presentation of a petition, which does not affect the
issue in hand. An important addition however was that of a fifth sub-section to s. 16 of the
1968 Act (s. 17, Cap. 19) so that the relevant part of the section now reads:

"17. (1) No election of a candidate as a member shall be questioned except by an

election petition presented under this Part.
(2) The election of a candidate as a member 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
petition, 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 as a member.

(5) For the purposes of this Part "election" includes a primary election."

It can be said that the intention of the legislature in enacting sub-s. (5) was to make the
1968 provisions of Part VI, repeated in 1973, applicable to primary elections also, so that
the result of such an election could if necessary be challenged by way of an election
petition. Section 17 (1) and (2) refers however to the "election of a candidate as a
member". The word "member" is defined in s. 2 of the Act as meaning "an elected member
of the National Assembly", a repetition of the 1968 definition. Does s. 17 therefore continue
to refer solely to a final election where the successful candidate is elected as a member of
the National Assembly? This is the question raised, at the instance of the Court, in order to
determine the Court's jurisdiction to entertain the present petition.

The learned counsel for the petitioner, Mr Chongwe, submits that the legislature's intention
was expressed in the addition of sub-s. (5) of s. 17 but that the parliamentary draftsman
omitted to extend the meaning of the word "member" in sub-s. (1) and (2). He submits that
a petition can be filed under the Act against the result of a primary election per se.

The learned counsel for the respondent, Mr Patel, submits that the language of sub-ss. (1)
and (2) of s. 17 is clear and refers to final elections; this court must follow the plain and
ordinary meaning of the words used: the court cannot assume that the draftsman has made
any mistake in the matter; had the legislature intended that the result of a primary election
could be challenged by means of an election petition it would have expressed its intention
clearly.

There is little doubt that difficulty is encountered in construing the Act to embrace election
petitions in respect of the result of primary elections per se. The difficulty is apparent not
alone in the words quoted in sub-ss. (1) and (2) of s. 17 but elsewhere. Article 75 (1), (4)
and (5) of the Constitution reads:

"75. (1) For the purpose of selecting persons from any constituency to be candidates
for election to the National Assembly, the Electoral 10 Commission shall hold primary
elections in that constituency in such manner as may be prescribed by or under an Act of
Parliament.
(4) At the conclusion of the poll the Electoral Commission shall declare the number of
votes received by each candidate and shall thereafter submit the names of all the
candidates to the Central Committee together with the number of votes received by each
candidate.
(5) In any constituency of the National Assembly the three persons who have
received the greatest number of votes at the primary election shall be qualified for
nomination as candidates for election to the National Assembly from that constituency,
unless the Central Committee disapproves the nomination of any such person on the ground
that his nomination would be inimical to the interests of the State, in which event the
person who has received the next highest number of votes after the said three persons at
the primary elections shall become qualified for the nomination."

Again, Art. 67 lays down the qualifications necessary for a person "to be elected . . . as a
member of the National Assembly" but goes on to provide that -

"A person shall not be qualified to be a candidate for election to the National
Assembly unless he is one of the successful candidates at the primary elections held in
accordance with the provisions of Article 75 and his candidature has not been disapproved
by the Central Committee ;".

Those latter provisions are repeated in s. 7 of the Electoral Act. It will be seen that the
Constitution and the Electoral Act speak of a success in the primary elections as a
qualification for nomination as a candidate in the final electrons, subject to the decision of
the Central Committee in the matter. The legislation does not speak of any of the three
successful candidates in a primary election as being "elected" as such: they merely qualify
for subsequent nomination and may decide indeed not to subsequently file nomination
papers in the final elections if they so wish. Section 17 however speaks of the "election" of a
candidate. Section 18 (c) for example indicates that a petition may be filed by "a person
claiming to have had a right . . . to be election as a member at the election to which the
election petition relates": some difficulty is encountered in applying those provisions to a
primary election. Section 19 (3), dealing with the invalidity of certain votes upon a scrutiny,
refers only to the register of voters: it does not make reference to the "list" of voters in a
primary election referred to in s. 5 (1) of the Act. Section 20 (4) refers to one respondent
only: a petition might possibly question the result of a primary election in respect of all
three successful candidates. Section 28 (1) provides that the court shall determine "whether
the respondent or any other and which person was duly elected :" the wording would
appear to refer to the result of a final election in which only one candidate is duly elected.
The same can be said of s. 28 (3). In particular s. 28 (4) reads:

"(4) Where the High Court determines under subsection (1) that the respondent was
not duly elected, and that no other person was duly elected, at the election concerned, the
vacancy in the membership of the National Assembly in respect of which that election was
held shall be deemed to continue until duly filled."

If a petition was presented immediately after a primary election and was determined before
the final election then, no question of "deeming" the particular vacancy in the membership
of the National Assembly to continue would ever arise, as a primary election could not have
the effect of filling such vacancy. The wording of s. 28 (4) in my view can only refer to the
result of a final election.

Those are the difficulties, if I am to accept Mr Chongwe's interpretation of s. 17 (5). As

against that, the wording of that subsection is quite specific. Its provisions apply not just to
s. 17 but to the complete Part VI of the Act dealing with election petitions. If one applies
those provisions to s. 17 (1) and (2) the words "election of a candidate as a member" refer
to the whole process of election as a member, that is to say, the primary and the final
election: thus, s. 5 (1 ) of the Act speaks of "a primary election to the National Assembly".
The grounds under s. 17 (2) which have the effect of avoiding an "election of a candidate as
a member" then refer to primary as well as a final election. As I see it therefore, the
primary election of a member of the National Assembly can be rendered void upon proof of
any such grounds. If such election is void then it follows that the ensuring process of
election, the final election, is also void, because of course the member was not, in
retrospect, qualified for nomination as a candidate in the final election. That in my view is
the plain and natural meaning of the words in sub-s. (5) as related to the rest of the section
and seems to be the only logical explanation for the introduction of that sub-s. in 1973 on
the advent of primary elections.

Article 77 (1) of the Constitution provides that "the High Court shall have jurisdiction to
hear and determine any question whether . . . any person has been validly elected . . . as a
member of the National Assembly". The aspect of qualification for nomination as a candidate
in the final election affects the question of validity of subsequent election so as I see it the
High Court under those provisions alone, not to mention those of s. 17 of the Electoral Act,
has jurisdiction to entertain a petition questioning the primary election of a member of the
National Assembly. If it were not otherwise an absurdity would arise. Following upon Art. 68
(4) of the Constitution s. 8 (3) of the Electoral Act provides that -

"(3) Any person who is convicted of any corrupt practice or who is reported guilty of
any corrupt practice or illegal practice by the High Court upon the trial of an election petition
under this Act shall not be qualified to be nominated for election as a member of the
National Assembly for a period of five years from the date of such conviction or of such
report as the case may be."
If it were not possible to file an election petition in respect of, say, an illegal practice
committed by a successful candidate at a primary election, who is subsequently elected to
the National Assembly then, on a reading of Arts. 68 and 71 of the Constitution and s. 8 of
the Electoral Act such a member would retain his seat in the National Assembly even if he
was subsequently convicted of such illegal practice. That to my mind would be an absurd
situation. The situation would be even more absurd where the member secured his
election as a direct result of such illegal practice, where for example one of two candidates
at a primary election procures the prevention of the other from filing his nomination paper
and thus is without any poll, in due course, the only person qualified for nomination at the
final election where again no poll takes place and he is returned unopposed. In my view
therefore the provisions of s. 17 in the least enable a petition to be presented contesting the
primary election, and thus the final election of a member of the National Assembly.

Mr Chongwe points to the provisions of s. 20 (3) however which read -

"(3) Every election petition shall be signed by the petitioner, or by all the petitioners
if more than one, and shall be presented not later than thirty days after the date on which
the result of the election to which it relates is duly declared."

Section 20 (4) is also relevant, it reads -

"(4) Notwithstanding the Provisions of subsection (3), when the election of a

member (hereinafter referred to as 'the respondent') is questioned upon an allegation of a
corrupt practice or an illegal practice, the election petition may, if the election petition
specifically alleges payment of money or some other act to have been made or done since
the declaration of the result of the election by the respondent or his election agent, or with
the privity of the respondent or of his election agent in pursuance or in furtherance of the
corrupt practice or illegal practice alleged in the election petition, be presented at any time
within thirty days after the date of such payment or other act."

Where a petition is directed against, say, a corrupt or illegal practice at a primary election
then the petition "relates" to the particular primary election at which the act complained of
was committed and not the whole process of election from primary through to final election.
''The provisions of sub-s. (4) make it clear that time runs from the declaration of the result
of the particular election, be it primary but where a subsequent associated act is done, time
is extended to run from the date of such act. Where no such associated act is alleged, a
petition contesting the result of a primary election must then be presented not later than
thirty days after the declaration of the result thereof, before even the final election may be
held, when the petitioner cannot know whether the respondent might prove successful in
the final elections. Mr Patel submits that therefore s. 20 (3) is to be construed contrary to
the interpretation which I have now placed on s. 17; but that approach, as I see it, does not
attempt to interpret sub-s. (5) thereof, or to explain the reason for the introduction of the
subsection, or to resolve the apparent absurdity if the interpretation were other than that
which I advance. I am faced then with the difficulty of reconciling the provisions of s. 20 (3)
and (4) with those of s. 17 (1) and (2). The difficulty is as follows:

(i) if a petitioner files an election petition shortly after a primary election he is not then
questioning the election of a candidate "as member" but as a person qualified for
nomination as a candidate for the final election, subject to Central Committee action;
(ii) if such a petitioner awaits the outcome of the final election he to may well be then
out of time for presenting the petition, in view of the intervening period between the dates
of the primary and final elections which may be set by the Electoral Commission under Rule
8 of the Electoral (National Assembly Elections) Regulations.

It might be said that in order to avoid the latter difficulty the legislature intended that where
a ground exists for avoiding a primary election the prospective petitioner must nonetheless
await the outcome of the final election, and frame a petition against the result thereof,
rather than that of the primary election, joining the successful candidate who ever he may
be, whether party to any misconduct or totally innocent thereof; as respondent. The
petitioner might then be said to question the latter's election on the basis of, say, the
commission by another candidate of a corrupt practice at the primary election. Apart from
the fact that this construction of the Act is somewhat strained, two difficulties arise
therefrom. Firstly, such construction is contrary to the plain and ordinary meaning of the
words contained in s. 20 (3) and (4). Secondly, had the petitioner in such a case made the
offending candidate a respondent to a petition against the result of the primary election,
then this cause of action would have been complete under s. 17 (2) (c) and he need only
have proved the commission of the corrupt practice: if the petition is framed against the
result of the final election the offending candidate may no longer be the respondent as such
and under s. 17 (2) (a) the petitioner must prove not alone the corrupt practice but also
that by reason thereof "the majority of the voters in the constituency were or may have
been prevented from electing the candidate in that constituency whom they preferred".

As I have already said, the provisions of Art. 77 of the Constitution in my opinion confer
jurisdiction upon the High Court to entertain a petition questioning the primary election of
a member of the National Assembly. Further, I do not see that such provisions are
exclusive, that they preclude the High Court, with unlimited original jurisdiction under Art.
109 of the Constitution, from entertaining an application questioning the result of a primary
election, where the respondent is not subsequently successful at the final election: if
Parliament has vested the High Court with jurisdiction to invalidate the election of one of its
members, then I cannot see that the High Court is precluded from questioning the validity
of the nomination as a final election candidate of one who fails to secure a seat in
Parliament. More importantly, however, I do not see that the provisions of Art. 77 preclude
Parliament from specifically so providing by legislation. If Parliament's intention in enacting
the Electoral Act is not to be so construed then it seems to me that an absurd situation
would arise.

I find it difficult to accept that the legislature intended to make provision for the questioning
of the result of a primary election only where the respondent is subsequently elected at the
final election. As far as a petitioner, who is a candidate for example, is concerned, it matters
not whether a particular respondent is subsequently placed first, second or third at the final
election. If excluded from candidature therein and whether or not the respondent is
successful, the petitioner might say that if he had been a candidate he might have received
more votes than any other candidate. If not excluded from candidature in the final election
and whether or not the respondent or another candidate is successful the petitioner might
say that if the respondent had been excluded from the final election a number of voters
might otherwise have voted for the petitioner sufficient to give him a majority.

I cannot see that the legislature ever intended to encourage delay in seeking judicial
remedy, that a petitioner must await the outcome of a final election when he had a valid
cause of complaint which would avoid the primary and therefore such final election. This as
I see it applies equally to the various classes of petitioner envisaged under s. 18 of the Act,
be he a candidate, a voter or even the Attorney-General himself. In the least the prompt
presentation of a petition questioning a primary election would be in the national interest us
possibly avoiding the cost of a repeat final election. Again, to suggest that a petition must
be presented under the Act within thirty days of the result of a primary election, but must
be subsequently struck out for disclosing no reasonable cause of action if the respondent is
not elected as a member, depicts an absurd situation.

In the case of the Director of Public Proscutions v Ng'andu and Others (1) at p. 262 Baron,
D.C.J., in delivering the judgment of the Supreme Court observed:

"The courts will be very slow to assume that the legislature has made a mistake:
unless driven to it the courts will not alter a legislative provision by adding or omitting
words, on the principle that if the legislature has made a mistake the simple course is for
the legislature to rectify it by amending the provision in the ordinary way. But the courts are
driven to supply or omitting words where it is impossible to make sense of the provision as
framed. For instance, Maxwell on Interpretation of Statutes, 10th Edn. at p. 229 has this to
say:

'' Where the language of a statute, in its ordinary meaning and grammatical
construction, leads to a manifest contradiction of the apparent purpose of the enactment, or
to some in convenience or absurdity, hardship or injustice, presumably not intended, a
construction may be put upon it which modifies the meaning of the words, and even the
structure of the sentence. This may be done by departing from the rules of grammar, by
giving an unusual meaning to particular words, by altering their collocation, or by rejecting
them altogether, under the influence, no doubt, of an irresistible conviction that the
legislature could not possibly have intended what its words signify, and that the
modifications thus made are mere corrections of careless language and really give the true
meaning. Where the main object and intention of a statute are clear, it must not be reduced
to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of
necessity, or the absolute intractability of the language used.''

Again at p. 236 of the same work the learned author says:

'' Notwithstanding the general rule that full effect must be given to every word, yet if
no sensible meaning can be given to a word or phrase, or if it would defeat the real object
of the enactment, it may, or rather it should, be eliminated. The words of a statute must be
construed so as to give a sensible meaning to them if possible.' "

In the present case I am driven to the conclusion that the draftsman considered that the
simple addition of sub-s. (5) to s. 17 of the Electoral Act would suffice to give effect to the
legislature's intention in the matter, without observing the difficulties involved in applying
the subsection to the remainder of Part VI of the Act. I am quite satisfied on the plain and
natural meaning of the words of the subsection as applied to all of s. 17 that in the least
an election petition may be presented questioning the result of a primary election in respect
of a candidate who is elected as a member of the National Assembly at the final election.
Further, in view of the explicit words contained in s. 20 (3) and (4) and in view of the
absurdities which would arise were the situation otherwise, I am satisfied that it was the
legislature's intention that an election petition questioning the result of a primary election
must be presented, if at all, within thirty days of the notification of such result, or of the
occurrence of an act described in s. 20 (4), and that the court should have jurisdiction to
hear such petition irrespective of whether the respondent is elected as a member at the
final election.

I rule therefore that the present petition presented on 16th November, 1978, is properly
before me.
Application allowed

PAUL JOHN FIRMINO LUSAKA v JOHN CHEELO (1979) Z.R. 99 (H.C.)

HIGH COURT
CULLINAN, J.
7TH, MARCH 1979.
1978/HP/ NO. EP5

Flynote

Election petition - Illegal practice allegations - Undue influence, bribery, threats of force and
restraint - Election void.

Headnote

The respondent was elected MP for the Kafue Constituency. The petitioner, a defeated
candidate for the same seat, filed a petition alleging that the respondent was guilty of
undue influence, threatening to use force, and bribery in divers instances. On the evidence,
the court found the respondent guilty of the illegal practice of bribery.

Held:
According to reg. 74 (1) (d) of the Electoral (National Assembly Elections)
Regulations, if the court finds an elected candidate to have committed the corrupt
practice of bribery, it may declare that he was not duly elected and that the election
was void.

Cases referred to:

(1) Re Three Election Petitions 1968/HP/EP/5, 21 and 22 (Unreported).

(2) Limbo v Mututwa 1974/HP/EP/2 (Unreported).
(3) Sligo Borough Case (1869) 10 M. and H. 300.
(4) Youghal Election Petition (1869) I.R. 3 CL 530.

Legislation referred to:

Electoral Act, Cap. 19, ss. 17 (2) (a) and (c), 20 (3).
Electoral (National Assembly Elections) Regulations, regs 2 (1), 74, 76, 25 77, 78, 83 (1)
and (2)
Representation of the People Act, 1949 (England), ss. 99, 100.
Corrupt Practices Prevention Act, 1854 (England).

For the petitioner: N. R. Fernando, Gib Chigaga and Co.

For the respondent: M. F. Sikatana, Veritas Chambers.

Judgment

CLLINAN, J.: delivered the judgment of the court

The petitioner was a candidate at the National Assembly final election for the Kafue
Constituency held on 12th December,1978. On 14th December the returning officer duly
declared the respondent to have been duly elected.

The petition is based on the provisions of s. 17 (2) (a) and (c) of the Electoral Act, Cap. 19,
which read as follows:

"(2) The election of a candidate as a member 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
petition, 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 that
constituency whom they preferred, or . . .
(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;".

Such grounds are based on some four allegations. The first of those is that the respondent's
election agent was guilty of "intimidation and threats of force and restraint" upon the
petitioner and his agents and supporters amounting to undue influence under the provisions
of reg. 77 (1 ) (a) of the Electoral (National Assembly Elections) Regulations (which I shall
hereafter refer to as "the regulations" and by regulation). The petitioner gave evidence; so
also did Charles Moomba Vice - Chairman of the Kafue Party Constituency, Alexis Mwiya, a
Councillor in Kafue Township Council and a polling agent of the petitioner, and also Mrs
Zelesi Mwanza, Lady Chairman of the Chawama Party Branch. It was their evidence that the
petitioner, Mr Moomba and Mr Mwiya after contacting the Chawama Branch Chairman at
Kafue had approached Mrs Mwanza, the Lady Chairman, at her house in Chawama in the
afternoon of Sunday, 3rd December, 1978. While speaking to Mrs Mwanza Mr Tryson Phiri,
the Chawama Branch Publicity Secretary, acknowledged by the respondent to be his election
agent, approached them brandishing a knobkerrie and telling them to leave as they had not
sought permission of the Chairman to campaign at Chawama. Mr Phiri was informed that
such was not the case. He departed for Kafue, failed to find the Chairman, returned and
apparently accepting that he had been in the wrong apologised to the petitioner and his
party, and accompanied them when the petitioner was introduced to voters at some three
houses. The petitioner had felt intimidated by Mr Phiri's earlier behaviour. He considered
that such behaviour was not conducive to free campaigning. For that reason he visited only
three houses. He did not campaign again in Chawama as a result of such incident.

Mr Phiri denied that he had brandished a knobkerrie or stick. His evidence indicates however
that his behaviour was such that he considered it necessary to subsequently apologise to
the petitioner and his party. His evidence was supported by Mr Bruno Mwiinga, the
Chawama Branch Secretary, to the extent that the latter's evidence is neutral as to any
alleged violence used by Mr Phiri.

Regulation 77 in part reads as follows:

"77. (1) Any person who directly or indirectly, himself or by any other person -
(a) makes use of or threatens to make use of any force, violence or restraint upon
any other person; in order to induce or compel that person -

(i) to sign a nomination paper or refrain from signing a nomination paper; or

(ii) to vote or retrain from voting; or
(iii) to refrain from claiming registration as a voter; or
(iv) to refrain from offering himself as a candidate for election; Soon account of
that person having-
A. signed or refrained from signing a nomination paper; or
B. voted or refrained from voting at any election; or
C. refrained from claiming registration as a voter; or
D. refrained from offering himself as a candidate; shall be guilty of the
offence of undue influence.

(2) Any person who, by abduction, duress or any fraudulent device or contrivance,
impedes or prevents the free exercise of his vote by any voter or thereby compels, induces
or prevails upon any voter either to give or to refrain from giving his vote at any election,
shall be guilty of the offence of undue influence."

There are issues of credibility involved in the evidence. I do not see however that it is
necessary to resolve them. A study of reg. 77 indicates that in any event Mr Phiri's alleged
behaviour does not fall within the compass of the provisions thereof. Neither as I see it does
such behaviour constitute a corrupt or illegal practice under the regulations. It may be said
that it constitutes "misconduct" as defined by the late Hughes, J. (as he then was), in the
judgment delivered in Re: Three Election Petitions. I do not see however that any evidence
whatsoever has been adduced, to show that the majority of voters in the constituency may
have been (much less, were) prevented from electing the candidate in the constituency
whom they preferred. Hughes, J., found that such conditions were satisfied in the above
case, but that was a case where aspiring candidates were prevented from lodging their
nomination papers. Again in the case of Limbo v Mututwa (2), a case which came before
one, I similarly found that such conditions were satisfied for the very same reason. Those
conditions are not satisfied in the present case.

It is also alleged that the respondent gave a crate of beer and a crate of soft drinks to Mrs
Vastina Phiri Muzyamba, the Lady Chairman of Musambazi Party Constituency, in order to
corruptly influence her to vote for and to secure the votes of others for the respondent. The
alleged transaction, which is completely denied by the respondent, took place on 15th
October 1978, some four days before polling day for the primary election. Mr Sikatana for
the respondent submits that such evidence is admissible as it is connected with the primary
and not the final election: this petition was lodged on 22nd December, 1978, and under the
provisions of a. 20 (3) of the Act, which in effect provide that a petition in respect of the
result of a primary election shall be presented within thirty days of the declaration of that
result, the evidence of Mrs Muzyamba is statute barred. Mr Fernando for the petitioner
submits that the petition has been presented in respect of the result of the final and not the
primary election, and the evidence is admissible, even though the alleged transaction
occurred before the primary election, if it can be shown that the transaction was in fact
connected with the final election. With that general proposition I agree, though difficulties
may be encountered in applying it where it is shown that the transaction affected both the
primary and the final election. In the present case however Mrs Muzyamba as Lady
Chairman of a Party Constituency was a voter in the primary election: further in such
capacity she was in a position to influence Constituency and Branch officials who were also
voters. She testified that the respondent's exact words when presenting the beer and soft
drinks were "I would like you to assist me so that you organise Branch officials to vote for
me. My symbol is a 'plane'". Mrs Muzyamba was asked further questions by the court. The
answers thereto served but to confirm the impression that the alleged transaction
concerned the primary election only. The onus is on the petitioner in the matter. I am not
satisfied, issues of credibility apart, that Mrs Muzyamba's evidence is connected with the
final election and it is therefore not relevant to the present petition. I would add n passing
that it was her evidence that she did not accept the drink in question: indeed the
respondent and his supporters drank it all. There could then be no "giving or providing" of
such drink as specified in the provisions of reg. 76. Mrs Muzyamba's evidence would, prima
facie, constitute evidence of an attempt to treat. Such Exempt an would not, as I see it,
constitute a corrupt or illegal practice, as for example would an attempt to commit an illegal
practice at the poll under reg. 83 (1) and (2). It would certainly constitute misconduct but
as I have said the Provisions of s. 17 (2) (a) do not otherwise apply.

It is also alleged that the respondent corruptly gave a chitenge material to Mrs Enid Banda,
a Constituency Publicity Secretary, on 15th Novembe,r 1979. The respondent completely
denies such transaction. Regulation 74 in part and reg. 76 read as follows:

"74. (1) Any person who, directly or indirectly, by himself or any other person -
(a) gives, lends, or procures, or agrees to give, lend or procure, or offers, promises, or
promises to procure, any money to or for any person on behalf of any voter or to or for any
other person in order to induce any voter to vote or refrain from voting or who corruptly
does any such act as aforesaid on account of such voter having voted or refrained from
voting at any election;
(c) makes any such gift, loan, offer, promise, procurement of agreement to or for any
person in order to induce such person to procure or to endeavour to procure the return of
any candidate at any election or the vote of any voter at any election;
(d) upon or in consequence of any such gift' loan, offer, promise, procurement or
agreement, procures or engages, promises, endeavours to procure, the return of any
candidate at any election or the vote of any voter at any election;...

(h) conveys or transfers or is concerned with the conveyance or transfer of any property,
or pays or is concerned with the payment of any money, to any person for the purpose of
enabling him to be registered as a voter, thereby to influence him vote at any future
election, or pays or is concerned with the payment of any money on behalf of any voter for
the purpose of inducing him to vote or refrain from voting, shall be guilty of the offence of
bribery.

(2) Nothing in this regulation shall be construed as applying to any money paid or
agreed to be paid for or on account of any expenditure bona fide and lawfully incurred in
respect of the conduct or management of an election.

76. Any person who corruptly by himself or by any other person either before, during
or after an election, directly or indirectly gives or provides or pays wholly or in part the
expenses of giving or providing any food, drink, entertainment, lodging or provisions to or
for any person for the purpose of corruptly influencing that person or any other person to
give or refrain from giving his vote at an election shall be guilty of the offence of treating."

A close examination of reg. 74 (1) reveals that the, corrupt practice of bribery involves the
consideration of "money", that is, with the sole exception of para. (h) which also involves
the consideration of "property", but the reference there has no application to the present
case. Paragraph (c) does make reference to "any such gift", but those words are clearly in
reference to the giving of money specified in para. (a). It will be seen that reg. 74 is broadly
based on the provisions of s. 99 of the Representation of the People Act 1949. Section 99
(2) however contains a provision extending the meaning of the word "money" to include a
"valuable consideration". There is no such provision in reg. 74. Neither is there any such
extended definition in reg. 2 which covers interpretation, or in the Electoral Act itself, or
indeed in the Interpretation and General Provisions Act. The word "money" has been given
many an extended meaning, particularly in authorities dealing with probate. In reg. 74 it is
used in places with the words "lend", "loan", "paid", "pays" and "payment": further, para.
(h) it is used in contrast to the word "property". In view of that, and the Act that the
extended definition in s. 99 (2) of the 1949 Act was not repeated in our Act, I am of the
opinion that it was the intention in framing reg. 74 that the word "money" should bear its
ordinary meaning. I consider it would be straining that meaning to so extend it as to cover a
chitenge material.

In my view reg. 76 is equally inapplicable. That regulation is based on s. 100 of the 1949
Act, but its origins go back over one hundred years. Section 100 covers the giving of "meat,
drink, entertainment or provision". Regulation 74 extends the corrupt practice to cover the
giving of "food" and "lodging". The word "provision" has been replaced by "provisions". The
word "provision", in the plural, is defined in the Concise Oxford Dictionary as meaning a
"supply of food, eatables and drinkables". The basis of the corrupt practice of treating is the
exceeding of the normal bounds of hospitality for a corrupt purpose. All of the old
authorities, and they are legion, cover such transactions as the giving of food, drink and
entertainment. The very title of the corrupt practice seems to me to be self explanatory. I
cannot see that the word "provisions" could be so strained as to include a chitenge material.
As I see it therefore, issues of credibility apart, the allegation does not amount to one of a
corrupt practice. It does in my view amount to an allegation of misconduct, but then as I
have said previously, the provisions of s. 17 (2) (a) do not otherwise apply.

Finally, it is alleged that the respondent gave the sum of K4 to Mr Bramwell Zandu to induce
him to procure the return of the respondent at the election. Mr Zandu, testified that he
received K4 from the respondent on 12th October, 1978, that is some seven days before
the polling day in the primary election. Mr Sikatana submits that, as with Mrs Muzyamba's
evidence, Mr Zandu's evidence is also not relevant to this petition. That depends, as I see it,
on the content of Mr Zandu's and other evidence adduced.

With regard to Mr Zandu, an application to treat him as a hostile witness was granted. He
testified that he was the Musambazi Constituency Youth Chairman. On 12th October 1978,
he met the respondent at a garage in Kafue. He needed some K2.50 for transport but
borrowed K4 from the respondent as he required an extra K1.50 to cover "break-downs".
He volunteered the evidence that the respondent "never mentioned any elections".
Subsequently, he met the respondent at Kafue railway station on 5th December when the
latter approached him and angrily accused him of going around "despising him", and saying
that he would make a "bad MP". As a result of this meeting, Mr Zandu went to the Regional
Secretary that day and made a complaint to the latter. He wished that the Regional
Secretary should call the respondent and "discuss the matter to hold no grudge against
me", he said, later qualifying that to indicate that he wished to repay the K4 in the presence
of the Regional Secretary. The Regional Secretary had earlier in evidence produced a
statement, written by him, in part in the third person and again in the first person, signed
by Mr Zandu, and date stamped 17th December 1978. Mr Zandu acknowledged the
statement as his, but denied the contents, the relevant part of which reads:

"A Bramwell Zandu was given K4.00 by Cheelo in order to campaign for him. He told
him that he has a lot of money for elections . . .
Earlier when Cheelo learned that I was not supporting him, he threatened to deal
with me after the elections".

Mr Zandu, however, denied the contents of his statement when read out to him. In
cross-examination, he contradicted himself many times.

He said he made the written statement date stamped 17th December 1978, on the 5th
December. He then said that he had made two statements to the Regional Secretary, one
on the 5th December, which was lost, and the other on the 17th December. Nonetheless,
despite his evidence that the latter statement was false, he testified that the two
statements were identical. When cross-examined by Mr Sikatana, he advanced the evidence
that he had been threatened by the Regional Secretary with imprisonment unless he made
the written statement stamped on 17th December, and repeated such statement to the
petitioner's advocates and to the court. He subsequently enlarged the allegation of duress to
a threat that he would be "shot". He admitted making a statement to such advocates
alleging that the respondent had given him K4 to vote for and campaign for him and that
the respondent was subsequently angry that he was not doing so. Again he admitted to
having said just that to the Regional Secretary. He admitted that what he had told the
petitioner's advocates was true, but seemingly retracted that again.

As for the respondent, he did not impress me as a witness. He testified that he met Mr
Zandu at the garage sometime in September. He "heard someone behind saying he had
problems", and instructed the petrol attendant to give Mr Zandu the K4 change from the
respondent's payment for petrol. He did not know Mr Zandu at the time. He retracted that
and said he did know him, qualifying that to mean he "knew he was in Kafue". It was Mr
Zandu's evidence however that the respondent had said to him on the 5th December, "
Zandu, you are my close friend and I don't want to hear this again." The respondent would
have it that he gave Mr Zandu the K4 in September when he was not even thinking of
elections but in re-examination he said he could not remember if it was September or
October. He admitted to meeting Mr Zandu on 5th December when he said to the latter,
"Let us speak the truth", an apparent reference to Mr Zandu's alleged unfavourable
comments concerning the respondent. The respondent testified that M Zandu "thought I
was getting annoyed about the K4" and went to the Regional Office.

If Mr Zandu was virtually unknown to the respondent, then it is difficult to appreciate how
he could be appraised of Mr Zandu's unfavourable comments; or again why he should
angrily react thereto or why he should lend K4 to a virtual stranger; or why in over four
months, he never asked for its return. If Mr Zandu felt that the respondent's anger had
some connection with the loan of K4 then I do not appreciate why he did not immediately
repay a small loan, without the necessity of having the Regional Secretary to formally
witness such repayment; or why indeed, if he felt so sensitive about the respondent's
reactions, he has since made no repayment. Mr Zandu's evidence of the alleged duress is,
to say the least of it unconvincing. I am satisfied that he made a complaint to the Regional
Secretary on 5th December which, the latter decided to leave in abeyance, perhaps in view
of the proximity of the final election, and thereafter reduced to writing on 17th December.
It is significant that although Mr. Zandu alleges that the Regional Secretary concocted the
statement to deceive the court, the latter was reluctant to produce it: he was clearly
reluctant because he was being asked to produce a confidential Party document. Mr Zandu
did not earlier in his evidence mention duress: he advanced it as a result of a direct
suggestion thereof made to him by Mr Sikatana during cross-examination. During his earlier
lengthy cross-examination by Mr Fernando he never advanced it as a reason for the
inconsistencies in his evidence. I am satisfied that the only reasonable inference to be
placed on all the evidence, is that the respondent gave the K4 to Mr Zandu to induce the
latter to endeavour to procure his return at the election and that when Mr Zandu Ad not
make such endeavour, but instead began to speak unfavourably of him the respondent
reacted angrily thereto, such anger having the effect of precipitating Mr Zandu into making
a complaint to the Regional Secretary, a complaint, which, he now perhaps regrets in view
of his possible exposure to the sanctions of regs. 74 and 78.

Mr Zandu's evidence does not in any way indicate that the respondent wished him to
campaign for the primary election: indeed the fact that the respondent approached him on
5th December, some seven days before the final election, protesting against his lack of
support, indicates that the K4 was given in connection with the final election. There is the
aspect that the payment was, nonetheless, effected on 12th October, some seven days
before the primary election when the respondent had not qualified for candidature in the
final election. In the Sligo Borough Case (3), the report of which is not available to me, it
was held that to constitute the offence of bribery it does not matter how long before the
election a bribe is given, provided the bribe is operative at the time of the election. In the
case of the Youghal Election Petition (4), a candidate was held guilty of treating, where such
treating took place even before the dissolution of Parliament and before he came within the
statutory definition of "candidate", which included a person who had declared himself a
candidate after dissolution of Parliament. It can be said that those authorities have no
relevance, as the respondent in this case could not be sure of being successful in the
primary election, of passing scrutiny by the Central Committee and of becoming a candidate
in the final election. The decision in the Youghal case however indicated that as the
respondent subsequently became a candidate, his candidature then related back to the
earlier treating, which under the Corrupt Practices Prevention Act, 1854, constituted an
offence only when committed by a candidate. In this respect, reg. 74 prescribes the offence
of bribery in respect of "any person" and not "any candidate". Further, the definition of
"candidate" contained in reg. 2 (1) covers the present situation. That definition reads:

"'candidate' in relation to an election to the National Assembly includes any person

who has lodged or intends to lodge his nomination for primary election, but does not include
any person who has been unsuccessful at the primary election or whose candidature has
been disapproved by the Central Committee;".

It will be seen therefore, that for the purees of the regulations, that is, of constituting the
offence of bribery, the respondent was, in fact, a candidate for the final election at the time
of the payment of money, in this case and the word "candidate" in reg. 74 (1) (c) then
applied to him.

There is no evidence whatsoever to show that such payment was made in respect of
expenditure bona fide on lawful election expenses. I am satisfied therefore, that the
respondent gave the sum of K4 to Bramwell Zandu, in order to induce the latter to
endeavour to procure the return of the respondent as a candidate at the final election,
bringing the respondent's actions within reg. 74 (1) (c). Again, I am satisfied that Bramwell
Zandu must in the least have promised to procure such return, but I am not satisfied that
such was a genuine promise or that there was any consensus ad idem. I do not see
therefore, that it can be said that his actions fall within reg. 74 (1) (d).

I am however, satisfied that the corrupt practice of bribery was committed by the
respondent in connection with the final election. Accordingly, I determine that the
respondent was not duly elected at the final election for the Kafue Constituency held on
12th December, 1978 and that the said election was void.
Election declared void

M v THE PEOPLE (1979) Z.R. 107 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER AND BRUCE-LYLE, JJ. S.
19TH DECEMBER, 1978, AND 3RD JANUARY, 1979
S.C.Z. JUDGMENT NO. 1 OF 1979

Flynote

Criminal law and procedure - Murder - Justifiable homicide - When defiance available.

Headnote

The appellant was convicted of murder.

The appellant was a trained soldier and a member of ZPRA, an army of liberation of the
Patriotic Front. On the day the deceased met his death the appellant was on duty in a ZPRA
camp guarding certain spies including a number of Selous Scouts of whom the deceased
was one. Every guard had been given strict instructions by their superiors to ensure that
none of the persons being guarded escaped. His orders were that in the event of any such
person attempting to escape the guard was to fire one warning shot and, if ignored, to
shoot the person. It was alleged that if any prisoner succeeded in escaping, the guard would
be liable to the death penalty.

The deceased attempted to escape, and was shot and killed by the appellant after failing to
stop when two warning shots were fired. On appeal, counsel for the appellant urged the
court to consider the defence of justifiable homicide.

Held:
(i) The defence of justifiable homicide is available to a person who uses
reasonable force to prevent the escape of an enemy of the Republic of
Zambia.

(ii) When considering the defence, the question is one of what was reasonable in
the particular circumstances of the case and this includes taking into account
all the circumstances of the case, including the nature and degree of force
used, the seriousness of the evil to be prevented, and the possibility of
preventing it by other means.

(iii) Failure to stop the deceased from escaping could not only have placed the
appellant's life in jeopardy, but the security of Zambia could have been
endangered. The appellant was justified in taking the deceased's life.

For the appellant: R.O. Okafor, Legal Aid Counsel.

For the respondent: R.E.M. Mwape, Senior Stale Advocate.

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

The appellant was convicted of murdering Mbasera Lutho on 1st September, 1977. As the
learned trial judge properly found, there was no dispute as to the facts.

The appellant is a trained soldier and a member of ZPRA - an army of liberation belonging
to the political wing of the Patriotic Front led by Mr Joshua Nkomo. On the day the deceased
met his death, the appellant was on duty in a ZPRA camp guarding certain spies including a
number of Selous Scouts of whom the deceased was one. Selous Scouts were/are known
agents of the armed forces of Rhodesia. The appellant was armed with a firearm during the
performance of his guard duties. Every guard, including the appellant, had been given by
ZPRA superiors strict instructions to ensure that none of the persons being guarded
escaped. In the event of any such person attempting to escape the guard was under an
order to fire at least one warning shot and, if the person trying to escape failed to stop, the
guard was to shoot at him. It was alleged that should an escapee succeed in getting away,
the guard would be liable to the death penalty.

Whilst on guard duties on the material date, the appellant had occasion to permit all the
Selous Scouts to come out of the guard-room between 0800 hours and 0900 hours so that
they could warm themselves in the sun. It so happened that the deceased was the last to
come out and that as soon as he did so he took to his heels. The appellant who was
standing at the side of the door of the guard-room then gave chase and fired two warning
shots at the ground but the deceased's flight continued. The appellant then fired at the
deceased's legs but the deceased still continued to run away. The appellant kept on firing at
the deceased until the latter fell down. The deceased was then taken back to the
guard-room where he died shortly afterwards.

A post-mortem examination on the body of the deceased disclosed two bullet wounds on the
trunk of the body and one on the chin, the cause of death being due to haemorrhage and
shook.

On the evidence before the court the learned trial judge made the following findings of fact:

". . . that the accused was at the material time a member of ZPRA, an Army attached
to the Patriotic Front and led by Mr Joshua Nkomo; that ZPRA is engaged in hostilities with
the armed forces of Rhodesia of which the Selous Scouts form part; that on the 1st
September 1977, the accused was a guard at camp run by ZPRA with orders to shoot
persons who tried try escape, if a warning shot was ignored . . . that the deceased was a
member of the Selous Scouts under the guard at camp on that day that he attempted to
escape and was shot and killed by the accused after he failed to stop when two warning
shots were fired by the accused . . . and that the guards are issued with firearms."

Although in the court below learned counsel had submitted that this was a ease of
excusable homicide, only the defences of ignorance and compulsion were considered in the
judgment and found not to avail the appellant. On appeal to us learned counsel for the
appellant relied on the defence of justifiable homicide and urged this court to acquit his
client. Justifiable homicide is of several kinds. It includes, for instance, the due execution of
public justice in putting a person to death in pursuance of a legal sentence, and, its
commission for the advancement of public justice such as the killing by a jailer of a prisoner
for the sake of preventing an escape from lawful custody, to mention but a few. In our
considered view the defence is available to a person who uses reasonable force to prevent
the escape of an enemy of the Republic of Zambia.

In all cases of justifiable homicide the question is simply one of what was reasonable in the
particular circumstances of the case. In considering what was reasonable the court is to
take into account all the circumstances of the case, including in particular, the nature and
degree of force used, the seriousness of the evil to be prevented and the possibility of
preventing it by other means. It would not be reasonable to cause death unless it were
necessary to do so in order to prevent the crime or effect the arrest and the evil which
would follow from failure to prevent the crime or effect the arrest is so great that a
reasonable man might think himself justified in talking another's life to avert that evil. (See
Halsbury's Laws of England, 4th Ed., Vol. 11 para. 1179).

Here, failure to stop the deceased could not only have placed the appellant's life in
jeopardy, but more importantly, it is a notorious fact that the security of Zambia could have
been endangered. Thus the consequences flowing from the deceased's successful escape
could have been of such gravity and magnitude to the appellant, to his colleagues and to
Zambia, that he was justified to take the deceased's life in order to avert that evil.

The trial court's failure to consider that the appellant might have been justified in taking the
deceased's life so as to avert the evil was a misdirection. Since we are not in a position to
say whether the trial court must inevitably have convicted had it not so misdirected itself we
are unable to apply the proviso to s. 16 (1) of the Supreme Court Act.

The appeal against conviction is allowed, the conviction is quashed and the sentence set
aside.

Appeal allowed

AMOCK ISRAEL PHIRI v JOHN CHIWALA BANDA (1979) Z.R. 110 (H.C.)

HIGH COURT
CULLINAN, J.
5TH MARCH, 1979
1978/HP/EP3

Flynote

Election petition - Corrupt and illegal practice - Electoral Act, s. 28 (6) - High Court Report -
Persons to be stated in the Report.
Election petition - Corrupt and illegal practice - Election Agent involved in such practice -
Whether candidate guilty - Whether can be stated in the High Court Report under s. 28 (6)
of Electoral Act.

Headnote

The respondent's agent was found guilty of committing an illegal practice before the
National Assembly primary election for the Chipata Constituency. There was no evidence to
show that this had been committed with the knowledge of the respondent. The court
considered the issue of whether the respondent's name should be stated in the Report
under s. 28 (6) of the Electoral Act.
Held:
In contrast to the Representation of the People Act, 1949, of the United Kingdom, s.
28 (6) of the Electoral Act cannot be construed to import an extended degree of
guilt; therefore there is no question of the respondent's name being stated in the
Report.

Legislation referred to:

Electoral Act, Cap. 19, ss. 8 (3), 17 (3), 28 (6), 68 (4).

Representation of the People Act, 1949 (England), ss. 124, 138, 140.

For the petitioner: R.M.A. Chongwe, R.M. A Chongwe & Co.

For the respondent: S.M. Patel, Solly Patel, Hamir & Lawrence

Judgment

CULLINAN, J.: These proceedings are based on the provisions of s. 28 (6) of the Electoral
Act which read as follows:

"28. (6) Where it appears to the High Court upon the trial of an election petition that
any corrupt practice or illegal practice has been committed by any person in connection with
the election to which the election petition relates, the High Court shall, at the conclusion of
the proceedings, prepare a report stating -

(a) the evidence given in the proceedings in respect of such corrupt practice or
illegal practice;
(b) the names and particulars of any person by whom such corrupt practice or
illegal practice was, in the opinion, of the High Court, committed:

Provided that the High Court shall not state the name of any person under this
paragraph unless such person has been given an opportunity of appearing before the High
Court and of showing cause why his name should not he so stated."

In a judgment delivered on the 13th February 1979, the court found that an illegal practice
had been committed by the election agent of the respondent before the National Assembly
primary election for the Chipata Constituency held on the 19th October 1978. The primary
purpose of these proceedings is to provide the election agent with an opportunity of
showing cause as to why his name should not be stated in any report under the above
provisions. It also falls to be considered however as to whether those provisions apply to
the respondent. The provisions refer to the situation where "it appears to the High Court ...
that any corrupt practice . . . has been committed by any person in connection with the
election". The report referred to in s. 28 (6) seems to be that contemplated in Art. 68 (4) of
the Constitution, which reads -

"68. (4) Parliament may provide that a person who is convicted by any court of any
offence that is prescribed by Parliament and that is connected with elections of the
members of the National - Assembly or who is reported guilty of such an offence by the
court trying an election petition shall not be qualified to be nominated or elected as a
member of the Assembly for such period (not exceeding five years) following his conviction
or, as the case may be, following the report of the court as may be so prescribed."
Parliament has in fact made such provision under section 8 (3) of the Electoral Act which
reads:

"8. (3) Any person who is convicted of any corrupt practice or who is reported guilty
of any corrupt practice or illegal practice by the High Court upon the trial of an election
petition under this Act shall not be qualified to be nominated for election as a member of
the National Assembly for a period of five years from the date of such conviction or of such
report, as the case may be."

It will be seen that the expression unreported guilty" contained in Art. 68 (4) of the
Constitution is repeated in s. 8 (3) of the Electoral Act. Many of the provisions of the
Electoral Act are based on those of the Representation of the People Act, 1949, of the
United Kingdom: in particular those of s. 28 are based on those of as. 124, 138 and 140 of
the 1949 Act. Section 138 of the 1949 Act however makes the following distinction:
generally speaking a candidate is reported "personally guilty" of certain corrupt or illegal
practices where it is proved that such was committed by or with the knowledge or consent
of the candidate: a candidate is reported "guilty by his agents" of such practice where an
election agent is involved in such practice without the candidate's knowledge or consent: he
may also be "guilty by his agents" where a polling agent is involved in the commission of
such a practice, except where the offence involved in is of a "trivial, limited and unimportant
character" and also here the circumstances set out in paras (a), (b) and (c) of s. 17 (3) of
our Act apply.

In the present case there was no evidence to show that the illegal practice committed by
the election agent of the respondent was committed with the knowledge and consent or
approval of the respondent. The question arises however as to whether the word "guilty",
apparently

imported from the 1949 Act, contained in s. 8 (3) of the Act should be construed to
embrace the varying degree of guilt found in s. 138 of the 1949 Act. The question is one of
importance of course in view of the sanction to be found in s. 8 (3) of the Act.

Both Mr Chongwe and Mr Patel submit that the express provisions of the 1949 Act have not
been repeated in our Act and that therefore the extended degree of guilt contains in the
1949 Act is not to be found in our Act. With these submissions I agree. It seems to me that
if the legislature had wished to provide for the various degrees of guilt set out in s. 138 that
it would have made clear provision therefore. Further s. 28 (6) refers only to the position
where a corrupt or an illegal practice has been "committed" by any person; it is only that
person who can be reported.

In the course of the argument this morning the question arose as to whether the word
"guilty" in s. 8 (3) should be construed in the criminal sense, that is to say, involving the
degree of participation as a principal offender contained in s. 21 of the Penal Code. That as I
see it will have to be left to another day, as I have found that there was no evidence that
the illegal practice in this case was committed with the knowledge and consent or approval
of the respondent.

In my judgment therefore s. 28 (6) cannot be construed to import the extended degree of

guilt contained in the 1949 provisions, and there can be no question therefore of stating the
name of the respondent in any report under s. 28 (6) of the Electoral Act.
NEBUKADNEZA OCCO v THE PEOPLE (1979) Z.R. 112 (H.C.)

HIGH COURT
MOODLEY, J.
27TH APRIL, 1979
HNA/39/79

Flynote

Immigration and deportation - Deportation order - Resident convicted of criminal offence -

Whether liable to deportation under s. 26 (1) of the Immigration and Deportation Act.
Immigration and deportation - Deportation - Deportee not a citizen - Necessity to deport
him to country of origin or of which he is citizen - Immigration and Deportation Act, Cap.
122.

Headnote

The appellant, a citizen of Uganda and a resident in Zambia, was convicted of a criminal
offence. After the expiry of his sentence the Minister, after receiving the particulars of the
conviction under s. 33 of the Penal Code, signed a deportation order in terms of s. 26 (1) of
the Immigration and Deportation Act for the appellant to be deported to his country of
origin. The appellant was then escorted by immigration officials and handed over to the
Tanzanian officials at the border between Zambia and Tanzania for them to deliver the
appellant to Uganda immigration officials on behalf of the Government of Zambia.

The appellant was convicted of returning to Zambia after a deportation order had been
made against him contrary to ss. 29 (3) and 30 of the Immigration and Deportation Act.
It was submitted that since the appellant was an established resident, he should not have
been made the subject of a deportation order. Secondly, it was submitted that there was no
evidence showing that the appellant had been effectively deported from Zambia to Uganda.

Held:
(i) Although the appellant had enjoyed the status of an established resident, he
was not immune from being the subject of a deportation order, and as a
non-citizen once he was convicted of a criminal offence the prosecution was
duty bound in terms of s. 33 of the Penal Code to forward particulars of the
conviction to the Minister in terms of s. 26 (1) of the Immigration and
Deportation Act, and it was mandatory on the part of the Minister at the
expiration of the sentence to sign a deportation order.

(ii) The warrant signed by the Minister required the deportee to be deported from
Zambia to Uganda. However due to prevailing circumstances between Uganda
and Tanzania the court was bound to inquire whether the order was
effectively executed against the appellant.

(iii) The provisions of the Immigration and Deportation Act require a deportee
who is not a citizen to be sent to his country of origin, or country of which he
is a citizen. He cannot be convicted of this offence unless such actual
deportation is proved.

Case referred to:

(1) King v Secretary of State for Home Affairs [1917], 1 K.B. 922.

Legislation referred to:

Immigration and Deportation Act, Cap. 122, ss. 26 (1), 29 (3), 30.
Penal Code, Cap. 146, a. 33.

For the appellant: J.R. .Matsiko, Legal Aid Counsel.

For the respondent: L. Nyembele, State Advocate.

Judgment

MOODLEY, J.:

This is an appeal against conviction and sentence. The appellant was convicted by a
magistrate of the first class at Ndola of returning to Zambia after a deportation order had
been made against him, contrary to ss. 29 (3) and 30 of the Immigration and Deportation
Act, Cap. 122, and was sentenced to nine months' imprisonment with hard labour. Mr
Matsiko who appeared for the appellant had argued two principal grounds, the first being in
the alternative. Mr Matsiko submitted that the appellant, a citizen of Uganda was an
established resident in the Republic of Zambia and in those circumstances should not have
been made the subject of a deportation order. In the alternative, he argues that the
appellant was a refugee from Uganda and, accordingly, it would have been contrary to the
provisions of the Refugee (Control) Act, Cap. 122, for the appellant to be deported to
Uganda since his life would be in danger. Mr Matsiko's second ground of appeal is that there
was no evidence that the appellant had in fact been deported from the Republic of Zambia
and, in any event, there was no evidence that in terms of the deportation warrant he had
been deported to Uganda. In those circumstances, he should not have been convicted of the
offence charged. Mr Nyembele for the State supports the conviction.

The evidence before the trial court in a nut-shell is that the appellant who was a citizen of
the Republic of Uganda and resident in the Republic of Zambia was convicted of a criminal
offence. In those circumstances, the Minister of Home Affairs after receiving the particulars
of the conviction under s. 33 of the Penal Code signed a warrant in terms of s. 26 (1) of the
Immigration and Deportation Act, Cap. 122, that the appellant be deported from Zambia to
his country of origin, namely, Uganda. The prosecution evidence is that after the expiry of
his sentence, the appellant was escorted by immigration officials to Nakonde and the
immigration officials stationed at Nakonde handed the appellant over to the Tanzania
immigration officials at the border between Zambia and Tanzania who would then deliver
the appellant to the Uganda immigration officials on behalf of the Government of Zambia. It
would appear from the prosecution evidence that this was the practice followed by the
Zambian immigration officials in relation to citizens of Uganda who were deported from
Zambia. The learned magistrate resolved the issue on the basis of credibility of witnesses
and found that the appellant was in fact handed by the Zambian immigration officials to the
Tanzania immigration authorities at the border and in those circumstances convicted the
appellant. It was the appellant's contention that he was never in fact deported from
Zambia and that he was never taken in custody by the Tanzanian immigration officials. The
appellant stated that he did not have any travel documents on him and, accordingly, the
Tanzanian immigration officials had refused to accept him from the Zambia immigration
officials. He further stated that when it was apparent 30 that he was not allowed to enter
Tanzania, he was permitted to re-enter Zambia. He contended that he had never been
deported from Zambia to his country of origin. As I have said, the learned trial Magistrate
disbelieved the appellant, accepted the evidence for the prosecution and convicted the
appellant.

I now come to the first ground of appeal argued in the alternative. It is quite clear that even
if the appellant had enjoyed the status of an established resident in the Republic of Zambia,
he was not immune from being the subject of a deportation order. The appellant is not a
citizen of the Republic of Zambia. Accordingly, the moment he was convicted of a criminal
offence, the prosecution was duty bound in terms of s. 33 of the Penal Code to forward
particulars of the conviction to the Minister of Home Affairs and in terms of s. 26 (1) of the
Immigration and Deportation Act, Cap. 122, it was mandatory on the part of the Minister at
the expiration of the sentence to sign a warrant to deport such convicted person who was
not a citizen from Zambia. Thus in my view the fact that the appellant was an established
resident did not protect him from the provisions of s. 26 (1) of the Immigration and
Deportation Act and accordingly, a deportation warrant in this case.

was validly made against the appellant. With regard to the alternative argument that the
appellant was a refugee, I would simply dispose of the matter by saying that this was a
defence that was never put forward or relied upon by the appellant in the course of his trial.
There was no evidence before the trial Court that he was a refugee and accordingly, eligible
for protection under the Refugees (Control) Act, Cap. 122. It is not now open for this
appellant to put forward this argument as a ground of appeal before this court. In any
event, there was no evidence before the trial court that he was a bona fide refugee. The
appellant cannot have his cake and eat it at the same time. He was either an established
resident or a refugee. He could not be both. Accordingly, this particular ground of appeal
fails.

I now come to the second ground of appeal. Mr Matsiko has argued that the appellant had
never been deported from Zambia to Uganda and in those circumstances he could not have
committed the offence charged. Mr Nyembele for the State relied on the case of King v
Secretary of State for Home Affairs (1) at p. 922 where it was held that:

"The provisions of section 1 subsection 1 of the Aliens Restriction Act, 1914, and of
the Aliens Restriction Order, 1916, made thereunder, do not give a Secretary of State power
to order the deportation of an alien to any particular country. Those provisions, however,
empower a Secretary of Stake, upon making a deportation order, to cause the alien to be
detained and placed on board a ship which the Secretary of State selects and there detained
until the ship finally leaves the United Kingdom, with the result that the alien may be
obliged to disembark at the port to which the ship sails."

In my view, I do not regard this case as an authority to justify the alleged deportation in the
instant case. King's case (supra) confines itself to the provisions of the Aliens Restriction Act
of 1914 and the Order made thereunder and does not state a general proposition of law.
The warrant in this case as signed by the Minister, required the deportee to be deported
from the Republic of Zambia to Uganda. The form of the warrant as set out in the schedule
to the Immigration and Deportation Act uses the following words: "Now THEREFORE you are
commanded to cause the deportee to be deported from the Republic of Zambia to . . ." Mr
Nyembele's argument would have some foundation if the warrant had contained only the
following words: "Now THEREFORE you are commanded to cause the deportee to be
deported from the Republic of Zambia". But this is not the position here. In this case the
appellant was required by the warrant to be deported from Zambia to Uganda.
I now turn to the method employed by the immigration officials to deport the appellant from
Zambia. The trial court and, certainly this court, must take judicial notice of the fact that at
the material time there were no diplomatic relations between the Republic of Zambia and
the Republic of Uganda. Neither do these two countries enjoy a common border. It is
common knowledge that Tanzania and Uganda do have a common border and that there is
a common border between Zambia and Tanzania. It is also common knowledge that at the
material time there were no diplomatic relations between Tanzania and Uganda and in fact
the relationship between those two countries was marked with considerable hostility. On
one occasion the regime in Uganda had actually violated the territorial integrity of the
Republic of Tanzania. All these facts should have been considered by the trial court when it
came to finding whether the deportation order was effectively executed against this
appellant.

The prosecution evidence was to the effect that the Zambian immigration officials handed
the appellant to the Tanzanian immigration authorities who would ensure that the appellant
was escorted to Uganda. No evidence was forthcoming as to whether there was any
agreement between the Governments of Zambia and Tanzania to the effect that citizens of
Uganda who are to be deported from Zambia could be handled over to the Tanzania
immigration authorities who in turn would ensure that the deportee was escorted to Uganda
on behalf of the Government of Zambia. One would have also thought that, whether or not
such an agreement existed, the appellant would be furnished with necessary travel
documents for travel to Uganda through Tanzania. No such travel documents were produced
in court and, certainly, there were no documents from the Tanzanian authorities to the
effect that they had accepted the appellant from the Zambian authorities for deportation to
Uganda. The appellant had testified that he was the owner of a passport which had since
expired but this passport was never produced to the court.

It would appear that the provisions of the Immigration and Deportation Act, Cap. 122,
require a deportee who is not a citizen to be sent back to his country of origin or country of
which he is a citizen.
Section 26 (6) provides:

"For the purpose of establishing in relation to a person liable to be deported under

this section his identity, his citizenship and the country of his origin, an immigration officer
may require such person -
(a) in writing or otherwise to answer such questions as the immigration officer
may put to him;
(b) to produce any passport and any other pertinent document in his possession."

Thus if one considers the provisions of s. 26 (1) and (6) of Cap. 122, as well as the form of
the deportation warrant, it becomes apparent that the order for deportation is to ensure
that the person is repatriated from Zambia to his country of origin or country of which he is
a citizen. Thus I am satisfied that the evidence concerning the deportation of the appellant
in this case must be supported by documentary evidence and cannot be resolved on the
basis of credibility of witnesses alone. It is quite clear therefore that the learned trial
Magistrate had misdirected himself both on the law and on the facts when he held that this
appellant had been effectively deported from Zambia. I find that the statutory provisions
concerning the order for deportation had not been fully complied with and that the appellant
had not been legally deported from the Republic of Zambia to Uganda. In the result
therefore, the appear against conviction is allowed and both the conviction and sentence in
this case are set aside.
Appeal allowed

JENALA NAMBEYE v CHILESHE CHIRWA (1979) Z.R. 117 (H.C.)

HIGH COURT
MOODLEY, J.
20TH, MARCH, 1979
HNR/105/79

Flynote

Family law - Marriage - Jurisdiction - Marriage solemnised under the Marriage Act, Cap. 211
- Jurisdiction to hear and determine proceedings for divorce and other matrimonial matters.

Headnote

A magistrate of the second class gave judgment and made an order in an application for
dissolution of marriage by the applicant against the respondent. The marriage had been
solemnised under the Marriage Act, Cap. 211.

Held:
A subordinate court has no original jurisdiction to hear and determine proceedings in
respect of marriages solemnised under the Marriage Act, Cap. 211, or in
respect of what is known as common law marriages; such jurisdiction is vested in the
High Court only.

Legislation referred to:

Marriage Act, Cap. 211.

High Court Act, Cap. 50, s. 11 (1).
Subordinate Courts Act, Cap. 45, ss. 20 (1), 21, 22.
Local Courts Act, Cap. 54, ss. 5, 12, 56.

Judgment

MOODLEY, J.:

This case has been forwarded to the High Court for the purposes of reviewing a judgment
and order made by a magistrate of the second class at Chililabombwe on 20th July, 1978.
On the 15th June, 1978, Jenala Nambeye, a complainant, had sworn out an affidavit
before the learned magistrate in support of an application for divorce. The complainant
stated that she was married to one Chileshe Chirwa on the 26th September, 1974, in a
church; that on the 28th August, 1977, the respondent husband had expelled the
complainant from the matrimonial home on the grounds that he did not want her; that on
the 18th September, 1977, the respondent wrote her a letter through his church confirming
that he did not want her as a wife; and that the complainant had made up her mind to
divorce the respondent since he was not interested in her. She further stated that there
were two children of the family. The learned magistrate then caused a summons to be
issued against the respondent Chileshe Chirwa and he was requested to appear before the
court at Chililabombwe on the 26th June, 1978. On the 20th July, both the complainant and
respondent appeared before the learned magistrate. After the complainant and the
respondent had given their evidence the learned magistrate delivered judgment in the
following terms:

"This application has been brought by the respondent's wife here in after called
applicant seeking divorce on grounds of prolonged separation and that the respondent had
once written her a letter confirming that he no longer loved her. The respondent asserts
that he had discovered some African herbs with the applicant for which she could not
account for and that was the cause of the dispute. On the other hand he is not keen on a
divorce. The court has read the letter written to the applicant by the respondent. This
coupled with the one year period of no-union has prompted this court to grant a decree nisi,
for a period of six months.

ORDER
Decree Nisi granted for 6 months. If no union is effected during this period, the
couple will proceed to the High Court for a decree absolute."

It is not clear from the face of this record whether the learned magistrate entertained the
application for dissolution of the marriage under customary law or under the Marriage Act,
Cap. 211. Certainly there was no evidence given by either of the parties as to whether they
had under gone a marriage in accordance with customary law or a marriage under the
Marriage Act. It is possible that the learned magistrate was acting under a mistaken
presumption that the parties had been married under the Marriage Act because the
complainant had stated in her affidavit that she had married the respondent in a church.
When one looks at the form of the order made by the learned magistrate it becomes
obvious that he was under the impression that he was determining a matrimonial dispute
in respect of a marriage solemnised under the Marriage Act, Cap. 211.

It should be stated quite emphatically that a subordinate court has no original jurisdiction to
hear and determine proceedings in respect of marriages solemnised under the Marriage Act,
Cap. 211, or in respect of what is known as common law marriages. Jurisdiction to hear and
determine proceedings for divorce and other matrimonial matters and causes arising from
marriages under the Marriage Act or under the common law are to be exercised only by the
High Court. Section 11 (1) of the High Court Act, Cap. 50, provides: "The jurisdiction of the
Court in divorce and matrimonial causes and matters shall, subject to this Act and any rules
of Court, be exercised in substantial conformity with the law and practice for the time being
in force in England."

Subordinate courts of the first, second and third classes do not have original jurisdiction in
matters affecting the validity or dissolution of marriages under the Marriage Act - See para.
(iv) of the proviso to s. 20 (1), s. 21 end para. (iv) of the proviso to s. 22 of the
Subordinate Courts Act, Cap. 45. Subordinate courts have original jurisdiction in matters
relating to marriages under African customary law. It should be said that original jurisdiction
in respect of marriages under African customary law is also exercised by the local courts
under s. 5 and s. 12 of the Local Courts Act, Cap. 54. However, in terms of s. 56 of the
Local Courts Act, subordinate courts of the first and second class are also entitled to hear
and determine appeals from judgments or decisions of local courts and these would include
appeals in respect of matrimonial disputes decided by local courts under African customary
law.

Thus when one considers the record in this case it is quite clear that the learned magistrate
was purporting to exercise jurisdiction in matrimonial proceedings which were expressly
excluded from the subordinate courts. His action was ultra vires his powers since he had
acted in excess of his jurisdiction. Jurisdiction in respect of matrimonial proceedings under
the Marriage Act, Cap. 211, or marriages under the common law are the exclusive
prerogative of the High Court. In those circumstances there was no valid legal basis for the
learned magistrate to entertain and determine the application for dissolution of marriage in
the form he did. Before proceeding to hear and determine the case, he should have
considered whether the marriage between the parties was a marriage solemnised under the
Marriage Act, Cap. 211, or whether it was a marriage under customary law. Had he directed
his mind to this fact, he would have ascertained whether or not he had jurisdiction to hear
and determine the application. If it was a marriage under the Marriage Act, Cap. 211,
jurisdiction would have been excluded but if it was a marriage under customary law then he
would have had jurisdiction. In the exercise of my powers of review, I would hold that the
entire proceedings in this case are null and void. For the removal of doubt, I hereby quash
and set aside the order made by the learned magistrate.

Order set aside

EDSON CHENDA v SATKAAM LIMITED (1979) Z.R. 119 (H.C.)

HIGH COURT
MOODLEY, J.
2ND MARCH, 1979
1978/HN/136

Flynote

Civil procedure - Stay of execution - Judgment - Hearing of summons - Parallel actions -

Whether possible.
Civil procedure - Discretion to transfer case - Re-transfer - Setting aside judgment and
granting leave to defend - Condition precedent - Bona fide application.

Headnote

The plaintiff issued a specially endorsed writ against the defendant claiming a balance of
almost K500 in respect of goods sold and delivered to the defendant at his request. The
defendant did not enter an appearance and the plaintiff signed judgment in default of
appearance. The case was transferred from the High Court to the Luanshya subordinate
court for enforcement of the judgment. The defendant applied to the District Registrar to
re-transfer the action to the High Court so that he could apply to set aside the judgment
and be granted unconditional leave to defend the action. The District Registrar disallowed
the summons and on appeal:

Held:
(i) An application for a stay of proceedings before the subordinate court is a
condition precedent to the hearing of the summons by the District Registrar.

(ii) A condition precedent to the setting aside of judgment and the granting of
leave to defend is that the District Registrar in the exercise of his discretion
 grants an order issued for the transfer of the case from the subordinate court
to the High Court.

(iii) Such an application must be bona fide and satisfy the court that there is a
defence on the merits.

Legislation referred to:

High Court Act, Cap. 50, s. 23 (2).

Subordinate Court Rules, Cap. 45, O. 38, r. 4.

For the defendant: L. Mwanawasa, Mwanawasa & Co.

For the plaintiff: J.S. Adams, Adams & Adams.

Judgment

MOODLEY, J.: This is an appeal from a decision of the learned District Registrar at Ndola
who had on the 9th November, 1978, disallowed a summons to transfer the above action
from the subordinate court, Luanshya, to the High Court, Ndola, and an application to set
aside a judgment which the plaintiff had obtained in default of appearance on the 27th
February, 1978, and further that the appellant be granted unconditional liberty to defend
the action.

Both Mr Mwanawasa for the appellant and Mr Adams for the respondent have made detailed
submissions in chambers in support of their rival contentions. It would appear that on the
2nd September, 1977, the plaintiff issued a specially endorsed writ against the defendant
claiming a balance of K495.91 in respect of the goods sold and delivered to the defendant at
the defendant's request. The plaintiff says that the writ was served on the defendant
personally and when the defendant had not entered an appearance on that writ the plaintiff
signed judgment in default of appearance on the 27th of February, 1978, for the sum of
K495.91 after credit had been given to the defendant for a sum of K200 which the
defendant had paid against his debt. Thereafter the matter was transferred to the
Subordinate Court in Luanshya for the purpose of enforcing the judgment of the High Court.
It is understood that judgment summons had been issued against the defendant and the
subordinate court thereupon made an order that he defendant discharge his debt by
monthly instalments.

It is in these circumstances that the defendant had applied to the learned District Registrar
to re-transfer the action from the subordinate court, Luanshya, to the High Court so as to
enable the defendant to apply to set aside the judgment and be granted unconditional leave
to defend the action. In the course of the argument before this court the question arose as
to whether in the light of the fact that the proceedings had been considerably advanced
before the subordinate court to the extent that an order had been made against the
defendant, this court had jurisdiction to entertain the summons in the first place. It should
be said that the affidavit in support of the summons before the District Registrar omitted to
provide a detailed reference to the previous proceedings in the High Court. Neither have
there been any details concerning the subordinate court proceedings. Further it would
appear that there was no application for stay of proceedings before the subordinate court so
as to permit the learned District Registrar to hear the summons for the transfer or
re-transfer of the cause from the subordinate court to the High Court and for setting aside
judgment in default of appearance. Mr Mwanawasa suggests that a stay of execution was
not a condition precedent to the hearing of the summons by the District Registrar. If Mr
Mwanawasa is correct then it would appear that if there was no stay of the subordinate
court proceedings and the learned District Registrar had proceeded to hear the summons
which he did, then there would be two parallel actions in this matter, one before the
subordinate court and another before the District Registrar.

I am quite satisfied that by virtue of s. 23 (2) the High Court has wide powers to transfer a
cause from the subordinate court to the High Court. This subsection reads as follows:

"Any cause or matter may, at any time or at any stage thereof, and either with or
without the application of any of the parties thereto, be transferred by the Court or Judge
from any Subordinate Court to any other Subordinate Court or to the Court, or from the
Court to any Subordinate Court or from any Session or sitting of the Court to any other
Session or sitting."

Thus it is quite clear from this sub-section that the court has powers to transfer from the
subordinate court to itself, any cause or matter at any time or any stage. It should be said
that the power to order such transfer on the part of the High Court is discretional. However,
what one must bear in mind here is that the District Registrar was being asked to re
transfer the cause from the subordinate court since the cause in question had been
previously transferred from the High Court to subordinate court for purposes of enforcing a
judgment of the High Court.

As I have said that without an order for a stay of proceedings before the subordinate court,
it would mean that when the District Registrar was hearing the summons there was in fact
another action pending before the subordinate court. This situation in my view is
undesirable and can lead to many complications. The subordinate court has power to order
a stay of proceedings in terms of O. 38, r. 4, of the Subordinate Courts Rules. Once an
order for the stay has been granted by the subordinate court then it is up to the applicant to
apply by way of summons to the High Court to transfer the proceedings from the
subordinate court to the High Court. However, the summons in the form it was filed for
hearing before the District Registrar was in fact misconceived. The first summons should
apply for an order for the transfer of the cause from the subordinate court to the High
Court. The reason is that the power to order the transfer is discretional. Thus the District
Registrar had to decide first whether the exercise of his discretion he would grant the
application for an order for the transfer of the cause to the High Court from the subordinate
court. If he granted the application then he could go on to hear the other summons for the
setting aside of the judgment and for leave to defend the action. If he refused to grant an
application for the transfer then that is the end of the matter unless, of course, the
applicant appeals against his decision on the grounds that the refusal to grant the transfer
was an injudicious exercise of his discretion. It is my view that the learned District Registrar
should not have heard a summons which contained both an application for transfer and an
application to set aside judgment and to grant leave to defend.

The learned District Registrar in his ruling had disallowed the summons of the defendant
when on the merits he found that the defendant had no defence to the action. He stated
that he would be inclined to grant the summons for the transfer of the action provided there
was a likelihood that the judgment would be set aside in the event of a transfer. In my view
this was a proper direction on the part of the learned District Registrar. Then he dealt with
the application to set aside judgment. It is quite clear that his decision to dismiss the
summons to transfer the action was based on the fact that there was no defence open to
the defendant even if he was given leave to defend. As I have already stated the matter
was complicated by the fact that a single summons was issued in respect of two distinct and
separate reliefs sought.

I would like to add a further comment on the notice of appeal filed by the defendant in this
mater. It would appear that the notice of appeal was directed to the refusal by the learned
District Registrar to set aside judgment in default and to grant unconditional leave to defend
the plaintiff's action. Nowhere in the notice or grounds of appeal does the defendant
challenge the District Registrar's refusal of the application for the transfer of the action from
the subordinate court to the High Court at Ndola. A condition precedent to the setting aside
of judgment and the grant of leave to defend is that the learned District Registrar in the
exercise of his discretion would have "granted the summons (if one was issued) for the
transfer of the cause from the subordinate court to the High Court. One would have thought
that at the very least the notice of appeal would have referred to the refusal of an order for
transfer by the learned District Registrar.

Before disposing of this matter, I would briefly refer to the merits of the application to set
aside judgment and grant unconditional leave to defend. It is quite clear that it is open to
the defendant in an action to apply to the High Court to set aside judgment in default of
appearance and to be granted leave to defend the action. Any such application must be
bona fide. If the applicant satisfied the court that there was good reason for judgment to be
set aside and leave given to defend, the court will no doubt grant the application. In
obtaining leave to defend the defendant need no more than establish a triable issue namely,
he should satisfy the court that he has a defence on the merits. In para. 4 of the
defendant's affidavit dated the 11th October, 1978, he avers that up and until the service of
the judgment summons requiring him to appear before the subordinate court, Luanshya, on
27th July, 1978, he was not aware of the institution of legal proceedings against him as no
court documents were ever served on him before this incident. The plaintiff in his affidavit
dated 28th October, 1978, avers that the specially endorsed writ in this cause was served
by the bailiff on the defendant personally and on the 25th October, 1978, the bailiff had
given sworn evidence before the magistrate of the First Class at Luanshya of the said
service. This was not refuted by the defendant in any subsequent affidavit. Quite clearly it
would appear that the defendant's contentions that he was not served with a specially
endorsed writ in this case and that he was ignorant of the proceedings before the High
Court were false. In view of this therefore, the defendant's bona fide is questioned. Apart
from this falsification, a further point that the court would consider is, if the defendant had
entered appearance to the writ in the High Court and the plaintiff had applied for summary
judgment under O.13 of the High Court Rules since the debt was a liquidated amount, would
the court on the basis of the reasons adduced by the defendant grant leave to defend? It is
quite clear that if one peruses the affidavit of the plaintiff sufficient evidence was adduced to
show that the defendant was indebted to the plaintiff in respect of the amount claimed. If
one reads the three documents exhibited to the plaintiff's affidavit as a whole, no other
inference or interpretation is possible. The defendant had knowledge of the debt; he had
agreed to payment; he had in fact discharged part of that debt until he decided to inform
his employers to stop payment of the balance of the instalments which the employers were
deducting from his salary .Would the court find that a mere bald denial of the debt and an
assertion that the defendant had only introduced various unidentified customers to the
plaintiff amount to a bona fide defence on the merits, especially when one considers that
the defendant was found by the subordinate court to have been served with the specially
endorsed writ, a fact which he had denied in his affidavit. It is quite clear that in the face of
that kind of evidence the High Court must of necessity find that the defendant had not been
acting in good faith; that he had not raised a defence on the merits and therefore no triable
issue had been disclosed. In those circumstances the court will certainly in my view grant
the application for summary judgment in respect of the liquidated debt.
Thus for the foregoing reasons the appeal against the decision of the learned District
Registrar is dismissed with costs to the plaintiff, such costs to be taxed in default of
agreement.

Appeal dismissed

THE PEOPLE v EPHRAIM BASHILYO KAYUNGA (1979) Z.R. 124 (H.C.)

HIGH COURT
MOODLEY, J.
20TH FEBRUARY 1979
HNR279

Flynote

Criminal law and procedure - Magistrate Class II - Jurisdiction to sentence limited to three
years imprisonment - Concurrent or consecutive sentence - When appropriate.
Sentence - Magistrate Class II - Whether empowered to impose sentence totalling
aggregate of 27 years.

Headnote

The accused was convicted in a subordinate court of the first class by a Class II Magistrate
of three counts of forgery, three counts of uttering, and three costs of obtaining money by
false pretences, each of which carry a maximum sentence of three years imprisonment. He
was committed to the High Court for sentencing.

Held:
(i) A subordinate court presided over by a magistrate of the second class may
impose any sentence of imprisonment which does not exceed a term of three
years.

(ii) It is within such a court's Jurisdiction to impose the aggregate of consecutive

sentences even if the total aggregate exceeds three years' imprisonment;
provided the case is sent to the High Court for confirmation of any part of the
sentence exceeding one year.

(iii) The subordinate court may only commit to the High Court for sentencing if it
feels that greater punishment should be indicted for the offence than it has
the power to indict.

Legislation referred to:

Criminal Procedure Code, Cap. 160, ss. 7 (iv), 9 (3), 217 (1), (2).

Judgment

MOODLEY, J.:
This case has been forwarded by a magistrate of the second class at Chililabombwe who had
committed the accused to the High Court for sentencing in terms of s. 217 (1) of the
Criminal Procedure Code, Cap. 160. The accused had been convicted of three counts of
forgery, three counts of uttering and three counts of obtaining money by false pretences.
The learned magistrate when committing the accused for sentence stated, "I have noticed
that the maximum sentence on all these counts is 27 years. Even bearing in mind that some
of them would run concurrently, my maximum jurisdiction of 3 years will not adequately
mete out any punishment without reflecting a mockery of justice. The accused will be
committed to the High Court for sentence."

The learned Magistrate had erred in law when he stated that the maximum sentence for all
the counts is twenty-seven years. The magnum sentence in respect of each of the offences
with which the accused was charged is three years' imprisonment with hard labour. Thus if
one takes into account the total of the maximum sentences permissible in respect of each of
the nine counts they will amount to twenty-seven years' imprisonment.

The new to consider is the jurisdiction of a Magistrate Class II with regard to sentencing.
Section 7 (iv) of the CPC, Cap. 160, provides that a subordinate court, other than a court
presided over by a senior resident magistrate, a resident magistrate or a magistrate of the
Fast Class, shall not impose any sentence of imprisonment exceeding a terms of three
years. Thus the jurisdiction of a Magistrate Class II is limited to one of imposing a sentence
of three years' imprisonment in respect of a particular count. The offences of forgery,
uttering and obtaining money by false pretences carry a maximum of three years'
imprisonment with hard labour. It was within the learned magistrate's jurisdiction if he saw
it fit to impose the maximum sentence of imprisonment, namely, one of three years'
imprisonment with hard labour on each count. This would be within his jurisdiction.
However, in terms of s. 9 (3) of the CPC "No sentence imposed by a Subordinate Court of
the Second Class exceeding one year's imprisonment with or without hard labour, shall be
carried into effect in respect of the excess, until the record of the case or a certified copy
thereof has been transmitted to and the sentence has been confirmed by the High Court."
Thus no confirmation of sentence is required for up to twelve months' imprisonment on a
count but confirmation of sentence is only required where the sentence is in excess of one
year's imprisonment on a count.

The learned magistrate was labouring under the mistaken impression that since his
jurisdiction to impose a sentence was limited to only a maximum of three years'
imprisonment he therefore had no jurisdiction to impose concurrent or consecutive
sentences in respect of the crime counts where the total sentences of imprisonment
exceeded three years with or without hard labour.

Section 217 (2) of the CPC reads as follows:

"For the purposes of this section, the aggregate of consecutive sentences which
might be Posed by the Subordinate Court upon any person in respect of convictions for
other offences joined in the charge of the offence referred to in sub-section (1) shall be
deemed to be the sentence which could be imposed for such last mentioned offence."

Thus a subordinate court presided over by a magistrate of the second class may impose
any sentence of imprisonment which does not exceed a term of three years in respect of
each of the nine counts and it is within the court's jurisdiction to impose the aggregate of
consecutive sentences which in this case totals twenty-seven years for all nine counts. It is
only where the subordinate court in terms of s. 217 (1) of the CPC is of the opinion that
greater punishment should be inflicted the offence than the court had power to inflict, the
court may, for reasons to be recorded in writing on the record of the case, instead of
dealing with an accused person in any other manner commit him in custody to the High
Court for sentence. Since it was within the jurisdiction of the learned magistrate to impose
the maximum sentence of three years' imprisonment in respect of each of the nine counts
charged, there was nothing to prevent him from imposing concurrent or consecutive
sentences in excess of three years. All that was required was that the magistrate should
send the case to the High Court for confirmation of that part of the sentence of
imprisonment in excess of one year.

It is quite clear that the learned magistrate had not directed his mind to the provisions of s.
217 (2) of the CPC. In this case the learned 10 magistrate had ample jurisdiction to
impose the sentences as required by the law. For the guidance of the learned magistrate
the offences of forgery, uttering and obtaining by false pretences are correlated and could
be dealt with by imposing concurrent sentences and the three sets of concurrent sentences
could then be made consecutive, if necessary.

I rule that the High Court has no jurisdiction to deal with this case. Accordingly, I direct that
the prisoner be sent back to the subordinate court at Chililabombwe to appear before the
learned magistrate of the second class who is required to impose sentences in respect of
each of the nine offences in conformity with the law.

Order directing subordinate court to pass sentence

GEORGE PAUL PHIRI v GEZANI B. PHIRI (1979) Z.R. 126 (H.C.)

HIGH COURT
HADDEN, J.
17TH MAY, 1979
1979/HP/EP/10

Flynote

Election petition - Recount of votes - When court may order recount.

Headnote

The petitioner polled 330 votes less than the respondent. The result of the count of the
votes from two mixed ballot boxes were not announced until some time after the counting.
After this the petitioner demanded a recount but his demand was refused.

Held:
(i) The returning officer was right to refuse a request for a recount because as
soon as he has declared someone elected, the election can only be questioned
through an election petition.

(ii) The court may make an interlocutory order for a recount in proceedings
brought by way of an election petition if the evidence justifies the

Legislation referred to:

Electoral Act, Cap. 19, s. 19 (2).
Electoral (National Assembly Elections) Regulations, Cap.19, regs. 43, 44, 70 (1), (3)

For the petitioner: D.M. Lewanika, Shamwana & Co.

For the defendant: M.F. Sikatana, Veritas Chambers.

Judgment

HADDEN, J.: Though the petitioner seeks an order for a scrutiny pursuant to the provision of
s. 19 (2) of the Electoral Act, counsel for the petitioner in opening told the court that he in
fact seeks a recount of the votes; as there is no provision in the Act for an order for a
recount the only means whereby such an order could be sought, he submitted, was by
proceedings under s. 19 (2).

The basis upon which the petitioner seeks the order is that after the votes from two ballot
boxes had been mixed and counted he was able to form an option of the extent of the
support each candidate had received from the electorate, and that in all cases except one
his observations had proved to be substantially correct.

Mr J.T. Sikazwe, of the Electoral Office, produced the declaration of the result of the poll,
the record of proceedings at the count and the statement of rejected ballot papers. The
respondent polled 330 more votes than did the petitioner. The statement of rejected ballot
papers discloses their number to be 483, while the record of proceedings at the count shows
the total to be 482. The court attaches no significance to this discrepancy.

Mr L.M. Sichalwe, the returning officer for the election in question, described how the
counting of votes took place and admitted that the result of the count of the votes from
each of the mixed ballot boxes were not announced although they were recorded. After the
counting was completed he waited for about twenty minutes before declaring the result, no
request for a recount was made until after the result had been declared, when the petitioner
called on him at the rest house where he was staying. He denied that he had promised to
arrange a recount either the following day or at any other time. The reason why he refused
a recount was because the result had already been declared. The petitioner admitted that
he had not requested a recount before the declaration of the result, but said that Sichalwe
had promised to do so the following morning when the results were verified.

A candidate can demand a recount which could only be refused if the request, in the opinion
of the returning officer, is unreasonable. Regulation 70 (1) and (3) of the Electoral (National
Assembly Elections) Regulations provides:

"(1) A candidate, his election agent or his polling agent may, if present when the
counting or any recounting of the votes is completed, require the returning officer to have
the votes recounted or again recounted, or the returning officer may, on his own initiative,
have the votes recounted or again recounted:
Provided that the returning officer may refuse the request if, in his opinion, it is
unreasonable.
(3) No step shall be taken by the returning officer on the completion of the counting
or of any recounting of the votes until the candidates, election agents and polling agents
present at the completion thereof have been given a reasonable opportunity to exercise the
right conferred by this regulation."
Mr Lewanika submits that the returning officer was wrong in refusing the petitioner's
request for a recount and says that an order that this be done should therefore be made by
the court. Mr. Sikatana, for the respondent, submits that there cannot be a recount after
the result of the poll has been announced.

Regulations 43 and 44 read:

"43. When the counting of the votes has been completed and the result of the poll
ascertained, the returning officer shall -

(a) complete in duplicate a declaration of the result of the poll as in Form NAE 11
in the Schedule; and
(b) declare to be elected the candidate to whom the majority of votes has been
given by reading aloud public, at the place where such counting was conducted, such
completed form; and
(c) cause to be delivered to the Commission without delay the original of such
completed form.

44. (1) The Commission shall, in respect of each candidate declared elected in
accordance with the provisions of regulations 35 and 43, give notice in the Gazette of-

(a) the full name of such person; and

(b) the constituency in which such person was elected.

(2) Notwithstanding anything contained in regulation 35 or 43, a person

declared elected under either of the said regulations shall be deemed to have been elected
with enact from the date appointed for the taking of the poll at the final election in the
constituency concerned."

As soon as the returning officer had declared the respondent to be elected the respondent
was deemed to have been elected under reg. 44 (2) and the only method whereby such
election could be questioned was by way of an election petition, not by way of a request for
a recount by the returning officer under reg. 70 (1). The returning officer was correct in
refusing the request for a recount after the declaration had been announced although it
might have been more advantageous to the candidates, if they had been confidentially
informed of the result before this was done.

The court has in the past made an interlocutory order for a recount in proceedings brought
by way of election petition but the evidence must be such as to justify the making of such
an order. The petitioner formed his opinion of the approximate number of votes cast for the
respective candidates from his observations of the number of votes placed in each
candidate's basket. The assessment of the degree of his success was described as either
"very good", "good", "fair" or 'bad". In only one case, that of Chadiza and Kalemba, could it
be said to have been obviously wrong; the petitioner's classification of his result as being
"good" could more accurately in this case be described as "fair" or even "bad" as he polled
256 votes while the respondent and the third candidate polled 522 and 267 respectively.

Were it not for the fact that the petitioner and respondent have identical surnames and
similar initials, and that the petitioner's assessment of the degree for his success was
reliable in all cases except one, where the disparity between the result and his assessment
of the situation was such that it is unlikely that the petitioner could have been mistaken, the
court would be most hesitant to find that there was sufficient evidence upon which the court
could make an order for a recount. The court is satisfied however that for these two reasons
this is a proper case in which a recount should be ordered.

At the commencement of these proceedings the court ruled that it would not make an order
for a scrutiny, as prayed, without evidence being led which would justify the making of such
an order. Counsel had made it clear that he in fact sought an order for a recount and the
court has found that on the evidence such an order is justified. The court is satisfied that it
can make an interlocutory order for a recount without at this stage making a determination
either in accordance with the prayer to the position or in accordance with any amendment
to the prayer should an application for amendment be made at a later stage, and leave be
granted.

The court orders that there be a recount but only of those votes cast in favour of the
petitioner and the respondent; that such recount be conducted by the Registrar of the High
Court with the assistance of counting assistants to be nominated by the Director of
Elections, in the presence of counsel for both the petitioner and the respondent, and their
clients if so desired, within seven days from the date hereof, and that the Registrar do
thereafter submit a report of the result of the recount to the court; both parties to be at
liberty to apply in chambers.

Recount of votes ordered

MWANZA (FK) v NATIONAL TRANSPORT CORPORATION OF ZAMBIA LTD AND

ANOTHER (1979) Z.R. 129 (H.C.)

HIGH COURT
JEAREY, COMM.
6TH APRIL 1979
1975/HP/1218

Flynote

Contract - Employment - Wrongful dismissal - Offer of alternate position later refused - Lack
of proper notice - Breach of contracted terms - Plaintiff entitled to damages.
Contract - Employment - Presidential nominations - Powers of dismissal - Whether vested in
President.

Headnote

The plaintiff was nominated by the President as General Manager of UBZ, a subsidiary of the
1st defendant. Upon dismissal by the Managing Director of NTC Ltd, he refused to leave on
the basis that he could only be dismissed by the President. A month after his dismissal he
was invited to discuss an alternative position, but declined and brought an action claiming
damages for wrongful dismissal.

Held:
(i) Upon wrongful dismissal due to a breach of contract by the employer, the
employee is entitled to salary and other employments for a period equivalent to the
relevant period of notice.
(ii) Powers of dismissal do not rest in the hands of the President when he makes
nominations unless specifically stated in the regulations.
Cases referred to:

(1) Marriott v Oxford Co-operative Society, [1969] 3 All E.R. 1126.

(2) British Guiana Credit Corporation v Da Silva, [1965] 1 W.L.R. 248.
(3) Thomas Marshall (Exports) Ltd v Guinle, [1978] 3 All E.R. 193.

For the plaintiff: S.S. Zulu, SC Zulu & Co.

For the defendants: H.H. Ndhlovu, Jaques & Partners.

Judgment

JEARY, COMMISSIONER: This is a claim for damages for wrongful dismissal brought by the
plaintiff against the first defendant, National Transport Corporation of Zambia Limited
(which I shall call NTC) and its wholly owned subsidiary, United Bus Company of Zambia
Limited (which I shall call UBZ) as second defendant.

On 30th April, 1974, His Excellency the President wrote a letter to the plaintiff, the
operative part of which reads as follows:

"I have great pleasure in appointing you General Manager of the United Bus
Company of Zambia (UBZ) with immediate effect. In your new role, you will be required to
work with the Minister of Power, Transport and Works. The aim, of course, is to improve
the effectiveness of the company in its operations and to provide the necessary political
guidance which only a Cabinet Minister can do."

Upon receipt of this letter the plaintiff took up the appointment as General Manager of UBZ
and was so employed until 25th June 1975, when he received a letter written by Mr S.B.
Kafumukache, the Managing Director of NTC and Chairman of the Board of Directors of UBZ,
which stated as follows:

"I wish to advise you that, with immediate effect, you have been relieved of your
appointment as General Manager of the United Bus Company of Zambia Limited. Meanwhile,
arrangements are being made to find you another suitable appointment."

The plaintiff refused to accept this letter as a valid termination of his employment on the
basis that, having been appointed by His Excellency the President, he could only be
dismissed by His Excellency. He accordingly retained possession of his office in the UBZ
premises until evicted therefrom by the Police on 23rd July 1975, and sent a circular to
employees asserting that he was still the company's General Manager. This followed a
previous circular from Mr Kafumukache to the effect that the plaintiff had been relieved of
his post.

The plaintiff persisted in this attitude right up to and during the trial, and it is of course
possible that the Articles of Association of UBZ provide that its General Manager shall be
appointed by the President. Such Articles were not put in evidence before me, but since
both counsel for the plaintiff and counsel for the defendants agreed that His Excellency's
letter referred to above must be taken as a nomination rather than as an appointment, and
in this they were supported by the evidence of Dr N.S. Mulenga, MP, who was Minister of
Power, Transport and Works during 1975, I think I am justified in finding that the Articles of
UBZ are in common form and vest the management of the company, including the
appointment and dismissal of staff, in its Board of Directors.
The case as put by plaintiff's counsel at the trial (though not in earlier correspondence) was
that the plaintiff could only be dismissed by the Board of Directors of UBZ which did not in
fact do so. Some support for this argument is to be found in the fact that the letter of 25th
June 1975, was written on NTC's letterhead and was signed by Mr Kafumukache as
Managing Director of NTC and not as Chairman of UBZ.

The evidence of Mr Kafumukache and the Company Secretary of UBZ, Mr LJ Shimaponda,

on this point was to the effect that in communicating with officials of subsidiary companies
Mr Kafumukache always signed as Managing Director of NTC, that he had delegated
authority (subject to subsequent ratification) from the Board of UBZ to dismiss the plaintiff,
and that his action had been ratified by the Board of UBZ on 9th July, 1975, and that of NTC
on 11th July, 1975.

The plaintiff might have disproved this evidence by obtaining an order for the specific
discovery of the minutes of the UBZ Board of Directors meetings, but he did not do so. I
must therefore find that in writing the letter of 25th June 1975, Mr Kafumukache was duly
authorised to do so or, at least, that his actions were subsequently ratified. This finding
does not, however, assist the defendants a great deal, because the said letter constituted a
summary dismissal of the plaintiff, and no facts were pleaded or proved by the defendants
to justify such dismissal. I say that this letter constituted a summary dismissal, or, to put
it more accurately, a unilateral repudiation by the employer of the contract of employment,
because the employer was purporting to make a fundamental change in the terms of the
plaintiff's employment by depriving him of his post of General Manager, and where such a
change is not accepted by the employee it constitutes a termination of his contract - see
Marriott v Oxford Co-operative Society (1).

What is said above is, of course, subject to any specific provision in the employee's contract
of employment. Such contracts commonly provide that the employee will serve in a
particular post or in such other post as may be specified by the employer. In this case it was
common cause that the plaintiff was employed on what were called the ZIMCO Conditions of
Employment for permanent and pensionable staff. Clause 2.1 of those conditions reads as
follows:

"Subject to these conditions the Employee shall serve the Company . . . in the
Initial Position and in the Initial Grade or in such other capacity or grade as the Company
may from time to time notify to the Employee in writing."

This is such a clause as was described above, but it was admitted by the defendants before
me that they never specified an alternative capacity or grade for the plaintiff.

The reason as given by Mr Kafumukache was that the plaintiff refused to meet him to
discuss an alternative job. The plaintiff admitted that he received a telephone call from Mr
Kafumukache on or about 22nd July, 1975, asking him to come to a meeting and that he
had declined. He confirmed that telephone conversation by writing Mr Kafumukache a letter
on the same day reading as follows:

"Dear Mr Kafumukache,
You telephoned me this afternoon and wanted me to come over to NTC to discuss my
problem over my vacating the office. I replied that I was not discussing anything."

The plaintiff's evidence as to why he wrote that letter and what it meant was confused and
not very convincing. The probability is that he still regarded himself as General Manager of
UBZ (indeed, he signed the letter as such) and therefore felt there was nothing to discuss.
The defendants justify their failure to offer him another job by pointing to this letter coupled
with his refusal to vacate his office. In this I have considerable sympathy for them. But I
cannot find that an offer of discussions about a new job made almost a month after the
plaintiff had been relieved of his previous office complied with Clause 2.1 of the ZIMCO
Conditions.

Clause 18.1 of the same conditions might also be relevant in that it empowers the employer
to transfer the employee to another company within the ZIMCO group. That clause,
however, requires the execution of a transfer notice by the transferor and transferee
companies and no such notice was ever executed.

NTC's substantive defence was that the statement of claim disclosed no cause of action
against it, a contention I will return to later, while UBZ's substantive defence was that the
plaintiff's appointment was terminated by the payment of salary in lieu of notice. This refers
to a payment of K3,126.29 which was made to the plaintiff under cover of a letter entitled
"Terminal Benefits" dated 27th August, 1975. The provisions of the ZIMCO Conditions of
Employment relevant to this are as follows:

"2. 5 Either party may terminate the employment at any time by serving not less
than 90 days' written notice on the other such notice to expire on any day in the month.
2. 7 The Company is entitled to pay the Employee salary in lieu of the period or
part of the period of notice."

Neither the letter dated 25th June, 1976, nor the letter dated 27th August, 1975, purported
to give the plaintiff the notice required by Condition 2.5, and although the cheque sent to
the plaintiff under cover of the second letter represented three months' salary (with certain
additions and deductions) I am satisfied that that letter did not comply with the provisions
of Condition 2.5.

This is not to say, however, that the payment made under cover of that letter is without
effect, as will be seen in a moment. Having found that the plaintiff was wrongfully dismissed
on 25th June 1975, what is the measure of damages? Firstly, he is entitled to his salary and
other emoluments for the period 1st June 1975, to 25th June 1975. While I have a suspicion
that such salary and other emoluments were not paid to the plaintiff for that period
(because his Statement of Claim claims salary, etc. from 1st September 1975), he did not
claim them as special damages in his Statement of Claim nor did he lead any evidence one
way or the other. Accordingly, I cannot award these to him.

Secondly, he is entitled as damages for breach of contract to the payment of such amount
(less tax) as he would have earned during the period until UBZ could lawfully have
terminated his employment-see British Guiana Credit Corporation v Da Silva (2) at pp.
259-260. From this amount must be deducted any sums actually earned by the plaintiff in
other employment during the corresponding period or sums which he ought to have earned
during the same period in accordance with the doctrine of mitigation of damages. There is
no evidence in this case that the plaintiff earned any other sums during the period of ninety
days following his dismissal nor was any evidence adduced by the defendants (on whom the
onus lay) to suggest that the plaintiff could have mitigated his damages.

I can therefore ignore these two factors. The plaintiff is accordingly entitled to his salary and
other emoluments for a period of ninety days from 25th June, 1975. The payment made to
him referred to above comprised three months' salary, housing allowance at the rate of 20
per cent thereon, and pay in lieu of accrued leave, less tax, certain personal advances and a
sum of K464.03 described as hire charges for a motor vehicle registration number AAB 1179
for two months. With the exception of the last item the plaintiff does not dispute the
calculation of the amount paid to him although he maintains that he was entitled to other
perquisites and emoluments to which I will refer in a moment.

It seems to me to be clear that if an employee who is wrongfully dismissed is entitled to his

salary for the period until his employer could lawfully have dismissed him then he is also
entitled to compensation for the loss of other benefits (for example, the provision of housing
or a motor car) during the same period. Whether he is entitled to the actual enjoyment of
such benefits during that period or only monetary compensation for loss thereof depends on
the difficult question as to whether the wrongful repudiation by one party of a contract of
employment which is not accepted by the other party is effective to terminate the contract
or not. The general principle of the law of contract is, of course, that the wrongful
repudiation of a contract by one party which is not accepted by the other party does not
terminate the contract. The opposing argument is that since contracts of employment
cannot be specifically enforced they form an exception to the general rule. The authorities
for each of these arguments are set out by Megarry, VC, with, if I may respectfully say so,
his customary clarity and learning in the recent case of Thomas Marshal (Exports) Limited v
Guinle (3). Megarry, V. C., comes to the conclusion that contracts of employment do not
form an exception to the general rule although he admits (at p. 205) that "there are
difficulties in almost any view that one takes". With the greatest of respect, and admitting
the logic of Megarry, V.C.'s reasoning, I myself am inclined to the older view that contracts
of employment constitute an exception to the general rule. Fortunately, it is not necessary
for me to decide this point in this case since the defendants have made no claim against the
plaintiff in relation to his occupation of his office after his dismissal and the motor vehicle in
question was in fact recovered from the plaintiff by the police and returned to the defendant
prior to the institution of these proceedings.

Accordingly, I conclude that UBZ was not entitled to deduct the sum of K464. 03 from the
payment referred to above and the plaintiff must succeed against UBZ at least to this
extent.

The plaintiff is entitled to the use of the said motor vehicle or compensation for a period of
ninety days from the date of his dismissal. The sum of K464.03 was calculated at the rate of
3.5 per cent of the capital cost of the motor vehicle per month and represented two months.
It was pleaded by UBZ in its defence that the motor vehicle was recovered by the police on
11th October, 1975, but no evidence as to the date of recovery was led either by the
plaintiff or by the defendants. I must therefore resolve the question of the date of its return
by applying the burden of proof. In relation to his claim it is for the plaintiff to prove his
damages. He has not proved that he was deprived of the use of the vehicle before the
expiration of the ninety day period and accordingly I can award him no more than the sum
of K464.03 referred to above.

In relation to the UBZ's counterclaim for the unlawful detention of the vehicle between 26th
June, 1975, and 11th October, 1975, UBZ has not proved that the vehicle was retained by
the plaintiff for a period in excess of ninety days and I must therefore hold that the
counterclaim fails.

In addition to salary, housing allowance and leave pay the plaintiff also claimed the
following benefits in his statement of claim:
(a) A tax free entertainment allowance of K1, 200 per annum.
(b) A tax free gratuity at 25 per cent of his salary.
(c) Two tax free domestic servants at K65.00 per month.
(d) Household electricity and water up to a maximum of K40.00 per month.
(e) A free security night guard.

The plaintiff's evidence in relation to these benefits was that while they were not provided
for in the ZIMCO Conditions of Employment referred to above they had been enjoyed by his
predecessor as General Manager of UBZ and had been agreed by Mr Kafumukache when he
first took up his appointment. In passing I note that while the plaintiff disputes Mr
Kafumukache's authority to dismiss him, he apparently does not dispute Mr Kafumukache's
authority to negotiate his terms of service.

The defendant's evidence was to the effect that requests for these benefits had been put
forward by the plaintiff but that since the plaintiff was a Presidential nominee the requests
had been referred to the Ministry of Power, Transport and Works and the Cabinet Office and
that in spite of reminders no ruling had been received by the time the plaintiff's services
were terminated. While I do not doubt for a moment that as a matter of practice such
matters are referred to the Ministry and/or the Cabinet Office, as a matter of law it is for the
Board of Directors of UBZ or some person acting with their authority to determine the
conditions of service of its employees.

Mr Kafumukache stated in his evidence that the plaintiff was entitled under ZIMCO
Conditions for General Managers to two domestic servants at the expense of the company
(but not tax free), and free electricity and water, but not to the other benefits claimed (i.e.
entertainment allowance, gratuity and a security guard). While I am not by any means
completely satisfied that these emoluments were properly authorised (and I note that Mr
Kafumukache's evidence about domestic servants and electricity and water was contradicted
by another defence witness, Mr L. J. Shimaponda) I am bound to give the plaintiff the
benefit of this admission, and adopting a period of three months rather than ninety days for
ease of calculation I award him K195.00 in respect of domestic servants and K120.00 in
respect of electricity and water. Tax should be deducted from these sums but I do not
have the information necessary to calculate this.

I must now deal briefly with the position of the first defendant, NTC. This action was
originally commenced against NTC alone and the writ was endorsed with a claim for
damages for wrongful dismissal. Such claim was repeated in the statement of claim
delivered to NTC in May 1976.

In June 1976, the plaintiff obtained leave to amend the writ by adding UBZ as a second
defendant and thereafter the plaintiff delivered a statement of claim to UBZ in virtually
identical terms to the statement of claim previously delivered to NTC. The plaintiff, of
course, was never employed by NTC, and while it is possible that the plaintiff might have
been able to make out some form of claim against NTC arising from his dismissal (for
example, knowingly procuring a breach of contract) no such claim has been put forward.

At the trial the plaintiff's counsel attempted to overcome this problem by obtaining leave to
amend the statement of claim against NTC by adding the words "the servants or agents of
the second defendant" in para. 5 of the said statement of claim, so that it read:

"On 25th June, 1975, the Managing Director of National Transport Corporation of
Zambia Limited the servants or agents of the Second Defendants purported to relieve the
plaintiff of his appointment as General Manager . . ."

No other amendment was made to the said statement of claim and since it is not contended
that NTC was acting as agent for an undisclosed principal I cannot see that the statement of
claim, even as amended, discloses any cause of action against NTC.

Accordingly, I dismiss the plaintiff's claim against the NTC. I award the plaintiff K779.03 as
against UBZ, and I dismiss UBZ's counterclaim.

As to costs, the normal order would be for the costs of the claims against each defendant
and of the counterclaim to abide the event. Since, however, both defendants were
represented by the same firm of advocates I think the taxing master would have
considerable difficulty in respect of many items in apportioning costs as between the claim
against NTC (which would be payable by the plaintiff) and the claim against UBZ (which
would be payable by UBZ). I also bear in mind that UBZ is a wholly owned subsidiary of NTC
and that the plaintiff has succeeded only in respect of a small part of his claim. Subject
therefore to anything which counsel may have to say to me on the subject I propose to
order that each party shall pay its own costs.

Claim successful in part

STEPHEN LOVE MASEKA v ATTORNEY-GENERAL (1979) Z.R. 136 (H.C.)

HIGH COURT
SAKALA, J.
5TH MARCH, 1979
1979/HP/97

Flynote

Constitutional law - Prerogative writs - Writ of habeas corpus ad subjiciendum -

Preservation of Public Security Regulations - Whether need to prove allegations - Whether
proper to detain on criminal charges of which accused discharged.
Costs - When shared.

Headnote

The applicant was arrested by the police and charged with several counts of obtaining
money by false pretences. He was subsequently discharged, and immediately detained by
order of the President pursuant to the Preservation of Public Security Regulations. He
applied for the issue of a writ of habeas corpus.

Held:
(i) It is quite proper to detain a person for offences which have been the subject
of criminal charges which have been withdrawn if it is in the interests of
public security.

(ii) The detaining authorities have no duty to prove or support their allegations
when detaining someone since the question is one purely for his subjective
satisfaction.
 (iii) Costs may be shared by the parties if a difficult point of law or even a
constitutional point of great importance was raised for the first time by the
application.

Cases referred to:

(1) Kapwepwe and Kaenga v The People (1972) Z.R. 248.

(2) Vincent Namushi Munalula & 6 Ors v A-G (1979) Z.R. 154.
(3) State of Bombay v Atma Ram Vaidya A.I.R. (1951) S.C. 157.
(4) Naresh Chandra v State of West Bengal A.I.R. (46) (1959) S.C. 1335.
(5) Eleftheriadis v The Attorney-General (1975) Z.R. 69.
(6) Sharma v The Attorney-General S.C.Z. Judgment No. 13 of 1978.

Legislation referred to:

Preservation of Public Security Regulations, Cap. 106, reg. 33 (1).

Penal Code, Cap. 146, ss. 8, 309.
Preservation of Public Security Act, Cap. 106, s. 2.

For the applicant: D.M. Lewanika, Shamwana & Co.

For the respondent: A.G. Kinariwala, State Advocate.

Judgment

SAKALA, J.: This is an application for the issue of a writ of habeas corpus ad subjiciendum.
The applicant was detained by the order of His Excellency the President dated 22nd
December 1978, pursuant to reg. 33 (1) of the Preservation of Public Security Regulations.

The circumstances leading to the applicant's detention as can be deduced from the affidavit
are that on the 19th October, 1978, the applicant was arrested by police at Zambezi in
North - Western Province of the Republic of Zambia. On the 13th November 1978, he was
served with a detention order issued pursuant to provisions of reg. 33 (1) of the
Preservation of Public Security Regulations. On the 29th November 1978, he was charged
together with others on five counts of obtaining money by false pretences contrary to s.
309 of the Penal Code, Cap. 146. He appeared in court on the 30th November 1978, before
the senior resident magistrate here in Lusaka and pleaded not guilty to the said charges.
The case was then adjourned to the 14th and 19th December 1978, for mention and 29th
January, 1979, for trial. On the 19th December 1978, a nolle prosequi was entered and the
applicant was accordingly discharged by court. Immediately he was arrested by the police
and taken to Lusaka Central Prisons. On the22nd December 1978, he was served with a
detention order signed by His Excellency the President. On the 29th December, 1978, the
applicant was served with a statement setting out the grounds for his detention.

Paragraphs (11), (12) and (13) of the affidavit sworn by Mr Lewanika on behalf of the
applicant read as follows:

"That I am advised and verily believe that the grounds set out in the said statement
are not within the ambit of the Preservation of Public Security Regulations and further
and/or in the alternative they are improper grounds in that they relate to the same
allegations upon which criminal charges were brought against the applicant and withdrawn;
 That I am further advised and verily believe that the allegations contained in the
statement cannot possibly be prejudicial to the Public Security and there is no cause for the
said Steve Love Maseka to be detained."

The affidavit sworn by Mr Lewanika exhibited a photostat copy of a charge sheet containing
five counts of obtaining money by false pretences. It also exhibited a photostat copy of the
order of detention as well as a photostat copy of the grounds of detention. The respondent
also filed an affidavit in opposition. The affidavit consisted mainly of denials.

On behalf of the applicant, Mr Lewanika submitted that the exercise of the power to detain
under reg. 33 (1) of the Preservation of Public Security Regulations was improperly done.
He contended that the grounds on which the applicant is detained are the very grounds on
which the criminal prosecution was based and hence are not within the expression "public
security" as defined in section two of the Preservation of Public Security Act. Mr Lewanika
argued that the grounds are not only similar but worded in such a manner that they are
vague and imprecise whereby the applicant will not be able to make any meaningful 20
representation at the time of the tribunal. Mr Lewanika specifically attacked the words "on a
date unknown but between November 1976 and 1977", in the first ground as being vague
and improper. It was Mr Lewanika's further argument that the grounds upon which the
applicant is detained relate to previous acts which amount to criminal cases of defrauding
money. He submitted that reg. 33 (1) is intended for persons who threaten public security.
He pointed out that the use of the word "crime" in the expression "public security"
envisages crimes relating to disorder and not crimes like obtaining money by false
pretences. He also pointed out that the other meaning includes crimes relating to incitement
to assault people or overthrow the Government.

Mr Lewanika also submitted that apprehension in the mind of the detaining authorities must
show that if not detained, the individual will still continue committing the crimes and the
apprehension must exist and must be stated in the grounds in support of the detention. He
submitted that in the instant case, the grounds furnished to the applicant did not disclose
that there is an existing apprehension. He submitted that the omission to state that the
apprehension still exists is fatal and renders the detention unlawful. He contended that the
regulations were not intended as a way of punishing for crimes which the authorities are
unable to bring to the courts of law.

With regards to vagueness Mr Lewanika submitted that the grounds must "specify in detail"
the reasons for the detention. He submitted that the way the grounds were drafted are
vague. Firstly the dates or months when the applicant is alleged to have committed the acts
are not stated. In these circumstances, Mr Lewanika submitted that the applicant cannot
make a meaningful representation to the authorities. Hence the detention is also unlawful.

On behalf of the respondent, Mr Kinariwala contended that the grounds for the detention
cannot be said to be the same as the offences he was charged with when he was first before
the subordinate court. Before the subordinate court, he argued, the allegations were those
of obtaining money by false pretences. In the grounds of detention, he contended it is not
stated that he obtained money by false pretences Mr Kinariwala pointed out that the
charges against the applicant related to the months of June, July and August 1977, while
the period of the acts subject of the grounds of detention are November 1976 to 1977. He
submitted that in the grounds of detention the offences are of conspiracy, destruction of
lawful documents and misappropriation of Government funds. Mr Kinariwala also argued
that withdrawal of charges does not mean that a person cannot be detained. He contended
that the expression "public security" is inclusive and not exhaustive. Among the meanings of
public security, prevention of crime is one of them and another one being maintenance of
supplies and services, essential to life of the community. He contended that the applicant's
acts disrupted Government transport which is essential to the life of the community. Hence,
if the applicant is not detained, he would cause more damage to public security.

On vagueness, Mr Kinariwala contended that the grounds are clear and the applicant knows
why he is detained. He pointed out that the purpose of grounds is to furnish the detainee
the reasons for detention. On the question of the omission to include the words
"apprehension of future danger", Mr Kinariwala argued that it cannot be fatal as it is not
necessary to state them. He submitted that it is for the court to determine whether the
grounds justified a detention under reg. 33 (1).

I have very carefully considered the affidavit in support of the application as well as the
submissions by both learned counsel. Mr Lewanika's arguments can be set out very briefly
as follows:

(a) the grounds for detention are not within the ambit of the Preservation of Public
Security;
(b) the grounds are improper in that they relate to allegations upon which criminal
charges had been brought against the applicant and withdrawn;
(c) the grounds are vague and imprecise;
(d) the allegations contained in the grounds cannot possibly be prejudicial to public
security.

I will deal with these arguments in the order as set out. The first is that the grounds for
detention are not within the ambit of the Preservation of Public Security Regulations. Mr
Lewanika argued that the grounds for detention as furnished on the applicant being grounds
on which criminal prosecution was based did not fall within the expression "public security"
as defined in s. 2 of the Preservation of Public Security Act. He submitted that reg. 33 ( 1 )
is intended for persons who threaten public security and the crimes envisaged in that,
regulation relate to disorder and not obtaining money by false pretences. Mr Lewanika
further pointed out that the regulation was not intended as a way of punishing people for
crimes which the authorities were unable to bring before a court of law. On the other hand,
Mr Kinariwala submitted that the grounds of detention are not the same as criminal charges
that were withdrawn against the applicant. He submitted that the offences alleged in the
grounds of detention are those of conspiracy involving destruction of lawful documents and
misappropriation of Government funds. He further submitted that withdrawal of charges
does not mean a person cannot be detained under the Preservation of Public Security
Regulations. He contended that the definition of "public security" is inclusive and not
exhaustive and prevention of crime is one of the meanings of "public security" another
being maintenance of supplies and services essential to life of the community. In this regard
Mr Kinariwala further submitted that the applicant's acts disrupted Government transport
essential to the life of the community and if not detained, he would cause to cause more
damage to the public security.

Section 2 of the Preservation of Public Security Act Cap. 106 reads as follows:

"In this Act, the expression 'public security' includes the securing of the safety of
persons and property, the maintenance of supplies and services essential to the life of the
community, the prevention and suppression of violence, intimidation, disorder and crime,
the prevention and suppression of mutiny, rebellion and concerted defiance of and
disobedience to the law and lawful authority, and the maintenance of the administration of
justice."

While Mr Lewanika's contention is that the definition does not include crimes like obtaining
money by false pretences, I do not understand him and he could not have said that the
definition does not include crimes. In point of fact he himself cited crimes of disorder as well
as incitement as being crimes intended by the expression "public security". The grounds of
detention read as follows:

"NOW THEREFORE you are hereby informed that the grounds upon which you are
detained are:
THAT you on an unknown date, but between November 1976 and 1977 being a
person employed in the Public Service, namely Mechanical Services Branch, in a capacity as
acting Senior Accountant, by virtue of your employment you conspired with other persons
unknown to form fictitious Companies which purported to have supplied motor spare parts
to Mechanical Services Branch, and that in your capacity as acting Senior Accountant, you
had access to cleared cheques, payment vouchers, local purchase orders, banking sheets,
receipt vouchers and other documents of accounts used to effect payments for the falsely
supplied motor spare parts to the Mechanical Services Branch by these fictitious companies
the money of which amount to about K1,000,000.
AND THAT after these documents were processed by you to their final stages, you
with other persons unknown destroyed them to avoid detection, the acts of which are
tantamount to economic sabotage as the money intended for the genuine purchase of motor
spare parts for repairs of Government vehicles was misappropriated, hence you disrupted
the Government transport system of the Republic of Zambia.
These acts are prejudicial to the Public Security and its Preservations, for the Preservation
of Public Security, it has been found necessary to detain you."

I agree with the submissions of Mr Kinariwala that the allegations contained in the grounds
relate to conspiracy, destruction of lawful documents and misappropriation of Government
funds. The grounds further allege that the acts of the applicant were tantamount to
economic sabotage, and disrupted Government transport system. I am satisfied on a
consideration of these grounds that while they cannot be divorced from the criminal
charges, which the applicant had originally faced and subsequently dropped, they cannot be
said not to fall within the expression "public security". The expression at any rate is
inclusive and not exclusive. For my part, I cannot say that conspiracy leading to destruction
of lawful documents and misappropriation of public funds resulting in the disruption of
Government transport system is not a danger to "public security". I hold therefore that the
way the grounds are drafted is within the expression "public security".

The second argument of Mr Lewanika is that the grounds are improper in that they relate to
allegations upon which criminal charges had been brought against the applicant and
withdrawn. With greatest respect, I find nothing improper on the part of the detaining
authorities to detain a person on criminal charges which had earlier been withdrawn. This
point was considered in the case of Kapwepwe and Kaenga v The People (1). At p. 260
there is a passage in the judgment of Baron, D.C.J., as he then was which reads as follows:

"The machinery of detention or restriction without trial . . . is, by definition, intended

for circumstances where the ordinary criminal law or the ordinary criminal procedure is
regarded by the detaining authority as inadequate to meet the particular situation. There
may be various reasons for the inadequacy; there may be in sufficient evidence to secure a
conviction; or it may not be possible to secure a conviction without disclosing sources of
information which it would be contrary to the national interest to disclose; or the
information available may raise no more than a suspicion, but one which someone charged
with the security of the nation dare not ignore; or the activity in which the person
concerned is believed to have engaged may not be a criminal offence; or the detaining
authority may simply believe that the person concerned, if not detained, is likely to engage
in activities prejudicial to public security. 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.
These are far-reaching powers. In particular it must be stressed that the President
has been given power 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 who, perhaps because of their known associates or for some other reason, the
President believes it would be dangerous not to detain."

In a recent Supreme Court close of Vincent Namushi Munalula and Six Others v The People
(2) Silungwe, C.J., after citing the above passage after counsel for the appellants had
contended that the grounds upon which the appellants were detained were tantamount at to
criminal charges for criminal courts had this to say:

"I think that the foregoing extract expresses an accurate legal position on the
question whether the detaining authority may detain rather than lay a criminal charge."

Firstly, may I say I entirely agree with the passage of Baron, D.C.J., and I am in total
agreement with the observations of Silungwe C.J., on the passage cited. In the
circumstances, I cannot again with greatest respect accept Mr Lewanika's submissions on
this point.

The third argument on behalf of the applicant is that the grounds are vague and imprecise. I
am not quite sure why Mr Lewanika used both words "vague and imprecise". In my view the
word "imprecise" is synonymous with "vague". The question of vagueness has been dealt
with in Zambia in very many cases including the case of Kapwepwe and Kaenga v The
People (1). In that case, both Doyle, C.J., and Baron DCJ, as both were then, cited with
approval the passage in the judgment delivered by Kania CJ, in State of Bombay v Atma
Ram Vaidya (3) which reads as follows:

"What is meant by vague? Vague can be considered as the antonym of 'definite'. If

the ground which is supplied is incapable of being understood or defined with sufficient
certainty it can be called vague. It is not possible to state affirmatively more on the
question of what is vague. It must vary according to the circumstances of each case. It is
however improper to contend that a ground is necessarily vague if the only answer of the
detained person can be to deny it. That is a matter of detail which has to be examined in
the light of the circumstances of each case. If on reading the ground furnished it is capable
of being intelligently understood and is sufficiently definite to furnish materials to enable the
detained person to make a representation against the order of detention it cannot be called
vague."

Quite clearly the amount of detail and what constitutes vagueness will always depend upon
the circumstances of each case. In the Supreme Court of India in the case of Naresh
Chandra v State of West Bengal (4) the court had this to say:

"Vagueness is a relative term. Its meaning must vary with the facts and
circumstances of each case. What may be said to be vague in one case may not be so in
another and it could not be asserted as a general rule that a ground is necessarily vague if
the only answer of the detained person can be to deny it. If the statement of facts is
capable of being clearly understood and is sufficiently definite to enable the detained person
to make his representation it cannot be said that it is vague."

Mr Lewanika's argument is that the date of the alleged act is abnormal. The appellant is not
told what date or months he is alleged to have committed those acts. He submits that in the
circumstances he cannot be expected to make meaningful representation. On the other
hand Mr Kinariwala submits that the purpose of grounds is to furnish the detainee the
reasons for his detention. In the instant case, he submitted that the grounds are not vague.
When one examines these grounds the picture that emerges is that between a date
unknown but between November 1976 and 1977, the applicant who was then employed in
the public service as acting Senior Accountant in Mechanical Services Branch by virtue of
that employment was party to acts which involved - (a) conspiracy with other persons
unknown to form fictitious companies which companies purported to have supplied motor
spare parts to Mechanical Services Branch; (b) the applicant who had access to various
accountable documents which were used to effect payments for the alleged supplied motor
spare parts had money paid in the amount of a million kwacha; (c) the applicant who had
processed the relevant documents with other persons destroyed them to avoid detection.
The grounds further state that these acts amounted to economic sabotage because the
money was intended for genuine purchases to repair Government transport system. These
acts are alleged to be prejudicial to public security. Can it be said for a man who was an
acting Senior Accountant a fact which appears not to be disputed could not understand
these allegations? Can these grounds be said to be vague or imprecise? The applicant was
an acting Senior Accountant at Mechanical Services Branch which orders spare parts. These
facts must or ought to be within the knowledge of the applicant. They cannot in my opinion
be said to be vague.

The last argument is that the allegations contained in the grounds cannot possibly be
prejudicial to public security. Mr Lewanika has argued that the apprehension must exist and
must be stated in the grounds furnished. In the instant case, he contended that the grounds
did not state this apprehension. He submitted that the omission to state that the
apprehension still exists is fatal rendering the detention unlawful. It is perhaps fair to say at
this stage that Mr Lewanika cited several eases in support of his arguments. On this last
argument, he cited the case of Eleftheriadis v The Attorney-General (5). In that case, the
appellant had been detained pursuant to a detention order signed by His Excellency the
President under Regulation 33 (1) of the Preservation of Public Security Regulations, Cap.
106. The grounds as required by the constitution were served on him. On appeal to the
Supreme Court, the question which arose was whether an order and ground showed clearly
that the order was within the powers conferred by reg. 33 (1) of the Preservation of Public
Security Regulations. The court in that case held as follows:

"(i) Regulation 33 of the Preservation of Public Security Regulations, Cap. 106, is

directed to the preservation of the public security. There is no doubt whatever that it cannot
be used solely as a punitive measure;
(ii) Past activities can furnish good grounds for detention under the regulation provided
that those activities have induced an apprehension in the mind of the detaining authority of
future activities prejudicial to the public security;
(iii) The court cannot query the discretion of the detaining authority if it is exercised
within the power conferred;
(iv) The construction of the detention order and grounds must relate solely to their
natural meaning without any leaning in favour of the appellant."
It will be noted that the way the grounds of detention were framed in that case, the last
sentence reads as follows:

"Which act was prejudicial to the security of the Republic of Zambia."

Counsel for the appellant in that case pointed out that the grounds show that the detention
solely related to an alleged offence committed a year ago. The court in that case pointed
out that past activities can furnish good grounds for detention under the regulation provided
that "those activities have induced an apprehension in the mind of the detaining authorities
to future activities prejudicial to the public security." My understanding of that case is not
that the apprehension has to be specifically stated in the grounds of detention. In the
instant case, the grounds for detention in a nutshell are that the applicant having conspired
with others unknown to form fictitious companies, having destroyed lawful documents of the
Government the detaining authorities still apprehend that "these acts are prejudicial to
public security". They do not say the acts "Were prejudicial". I am satisfied that the
detaining authorities have clearly expressed the existence of a future apprehension. I
cannot therefore also accept this argument. In the result I hold that the applicant is lawfully
detained by an order signed by His Excellency the President pursuant to reg. 33 (1) of the
Preservation of Public Security Regulations. In the circumstances, I dismiss the application.

On the question of costs, in the case of Sharma v The Attorney-General (6), the appellant
had also among others appealed against my order that the respondent pays costs. In
allowing that appeal against my order of costs, the court noted that that case although it did
not raise a difficult point of law, raised a constitutional point of general importance for the
first time. Consequently the order of the court was that each party bears its own costs.
From my analysis of the grounds relied upon in the present case, I find firstly that there was
no difficult point of law raised; secondly, that the case did not raise for the first time a
constitutional point of great importance. In the circumstances, I order that the applicant
pays the costs.

Application dismissed

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.

(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 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 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 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 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 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:

"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.

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."

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:
 "(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

THE PEOPLE v BENSON CHIBAWE (1979) Z.R. 150 (H.C.)

HIGH COURT
MUWO, J.
18TH JUNE, 1979
HPR/89/79

Flynote

Sentence - Felony - Imposition of fine only - Impropriety.

Headnote

The accused was constricted of unlawfully doing grievous harm contrary to s. 229 of the
Penal Code, Cap. 146. He was sentenced to a fine of K30 or one month's simple
imprisonment in default of payment of the fine.

Held:
Section 26 (3) of the Penal Code requires the imposition of imprisonment in addition
to a fine where the offence is a felony. A sentence of a fine only should not have
been imposed.

Cases referred to:

(1) R. v Chalwe Musense, IV N.R.L.R. 84.

(2) R. v Mufunda, V N.R.L.R. 712.

Legislation referred to.

Penal Code, Cap. 146, ss. 26 (3) and 229.

For the accused: G. Chilupe, Legal Aid Counsel.

For the People: Balachandran, State Advocate.
_____________________________________

Judgment

MUWO, J.: The accused was convicted of unlawfully doing grievous harm contrary to s. 229
of the Penal Code, Cap. 146, and was sentenced to a fine of K30 or one month's simple
imprisonment in default of payment of the fine. The magistrate ordered that the whole
amount of K30 be paid to the complainant as compensation, which he probably did under
the provisions of s. 177 (1) (b) of the Criminal Procedure Code, Cap. 160.

When the case was brought to the attention of the High Court Registrar he thought the trial
magistrate was wrong in law to impose a sentence of a fine only without the additional
sentence of imprisonment as is required by law when the offence is in felony as is provided
under s. 26 (3) of the Penal Code. The Registrar drew my attention to the case of R. v
Chalwe Musense (1), where the provisions of s. 26 (3) of the old Penal Code, Cap. 6, were
construed by Palmer, A. J.

Section 26 (3) of the present Penal Code, Cap. 146, which has not been altered reads:

"26 (3). A person convicted of a felony, other than manslaughter, may be sentenced
to pay a fine in addition to imprisonment."

The case of R. v Chalwe (1) was one of they by servant contrary to ss. 243 and 249 of the
Penal Code. The accused was sentenced to a fine of 15s or two weeks' imprisonment with
hard labour in default of payment of the fine. On review Palmer, A.J., held:

"As the accused in this case has been convicted of a felony (other than
manslaughter) he cannot be sentenced only to a fine or imprisonment in default . . ."

The learned acting judge referred to s. 26 (3) of the Penal Code and to para. 79 of the now
obsolete book "Instructions to Magistrates". The acting judge amended the sentence to one
of one day's imprisonment with hard labour and 15s fine or two weeks' imprisonment with
hard labour in default of payment of the fine. (It should be noted that when a person is
fined and imprisonment is stated to be the alternative in the event of default of payment,
the imprisonment should be stated to be "simple imprisonment" and not "imprisonment with
hard labour" R. v Mufunda (2).)

The provisions of s. 26 (3) of the Penal Code, Cap. 146, have not changed since the case of
R. v Chalwe Musense (1) was decided in 1947.

I will, therefore, amend the sentence which will now read:

One day's imprisonment with hard labour and K30 fine or one month's simple
imprisonment. The whole amount of fine to be paid to the complainant as compensation.

Sentence amended

PETER MULOWA v THE PEOPLE (1979) Z.R. 152 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., BRUCE-LYLE, J.S. AND CULLINAN, AG. J.S.
24TH APRIL AND 8TH MAY, 1979
S.C.Z. JUDGMENT NO. 12 OF 1979

Flynote

Criminal law and procedure - Plea - Pleading more than once to same charge - Whether
amounts to prejudice.

Headnote

The appellant accused the complainant of having bewitched his dog; he rushed towards the
complainant's house with a muzzle-loading gun and shot him wounding him severely. In
court he appeared three times before different judges and on each appearance he was
asked to plead to the charge of attempted murder, and he pleaded not guilty each time. The
charge was later amended to wounding with intent to cause grievous harm and he pleaded
guilty and was convicted and sentenced. On appeal against sentence counsel also contended
that the appellant should not have been asked to plead more than once.

Held:
Although the taking of a plea to the same charge more than once is generally
undesirable, it is not prejudicial unless the accused, having pleaded not guilty at
firm, changes his plea to one of guilty to the same charge.

Case referred to:

(1) R. v Matyola (1958) R. & N. 154.

For the appellant: G. Chilupe, Legal Aid Counsel.

For the respondent: R. Balachandran, State Advocate.

Judgment
GARDNER, AG. D.C.J.: delivered the judgment of the court.

The appellant was convicted of wounding with intent to cause grievous harm and sentenced
to four years' imprisonment with hard labour. His appeal was against sentence only but we
allowed Mr Chilupe, Legal Aid Counsel for the appellant, to put forward one ground of appeal
against conviction.

The appellant was first charged with attempted murder and he first appeared before Ryan
Commissioner, on the 5th June 1978, when he pleaded not guilty and the case was
adjourned to the 6th June 1978. On that day the appellant appeared again before Ryan
Commissioner, when a plea was taken and the appellant pleaded not guilty. The case was
then adjourned to the next sessions. On the 6th November 1978, the appellant appeared
before Moodley, J., when a plea was taken again. The appellant again pleaded not guilty and
the case was adjourned for trial on the 7th November. On the 7th November no plea was
taken but the case was adjourned to the next sessions on an application by the State
Advocate. On the 10th January, 1979, the appellant appeared before Bweupe, J., and the
State Advocate withdrew the charge of attempted murder and put in an amended charge of
wounding with intent to cause grievous harm. To this charge the appellant pleaded guilty.
Counsel for the appellant referred us to the case of R. v Matyola (1). This was a case heard
in Nyasaland (now Malawi) whose Criminal Practice and Procedure was similar to that of this
country. In his judgment at p. 155 Spencer - Wilkinson, C.J., said that, although he was not
prepared to lay down a general rule that an accused person should never be asked to plead
more than once, it was his opinion that if an accused has the charge put to him more than
once he may ultimately admit simply because he thinks that this is what the court expects
of him. In that case the accused, when first charged with the offence of burglary, said: "I do
not deny entering the house. I did so because I had some drinks." And, as the learned Chief
Justice said:

"Upon this the learned magistrate, quite properly, entered a plea of not guilty."

At a later date the same charge was put to the accused again and he said: "I understand
the charge. I admit the charge." Thereafter the prosecution gave the facts of the case in
which there was nothing from which an intention to steal on the part of the accused could
be inferred. Moreover, the accused was not asked at the conclusion of the statement of
facts whether he agreed with those facts. The conviction was quashed in that case not only
because of the criticism of the number of times that the accused had been called upon to
plead, but because it was not proper for the trial court to accept a simple admission of the
charge, further questions should have been put to the accused in order to find out the exact
meaning of his plea, the statement of facts did not disclose an intention to steal, and the
accused was not called upon to agree with the facts. That case is clearly distinguishable
from the case at present before us. The appellant although charged three times with
attempted murder maintained his plea of not guilty and there was therefore no possible
prejudice by having been called upon to plead more than once. He did not plead guilty until
the charge was amended to wounding with intent to cause grievous harm. While we
respectfully agree with the comments of Spencer Wilkinson, C.J., in the Matyola case (1),
we must point out that, although the taking of a plea to the same charge more than once is
generally undesirable, there is no need to consider the possibility of prejudice unless, having
pleaded not guilty at first, an accused changes his plea to one of guilty to the same charge
on being called upon to plead again. As we have said earlier there was no prejudice to the
appellant in this case and in any event he was represented by Legal Aid Counsel at all the
hearings. There is no merit in this ground of appeal.
The appeal against sentence was dismissed.
Appeal dismissed

VINCENT NAMUSHI MUNALULA & 6 OTHERS v ATTORNEY-GENERAL (1979) Z.R.

154 (S.C.)

SUPREME COURT
SILUNGWE, C.J., BARON, D.C.J., AND BRUCE-LYLE, J.S.
20TH DECEMBER, 1978 AND 3RD JANUARY, 1979
S.C.Z. JUDGMENT NO 2 OF 1979

Flynote

Constitutional law - Detention - Grounds for detention - Vagueness - Necessity to give detail
of grounds for detention.
Constitutional law - Detention - Where grounds alleged amount to criminal offence -
Whether State has a duty to prosecute.

Headnote

The applicants were detained under reg.33(1) of the Preservation of Public Security
Regulations and were furnished with grounds of detention in terms of Art 27(1) (a) of the
Constitution. The grounds upon which each one of them was detained are stated in the
judgment.

Counsel for the appellants contended that the grounds of detention were vague and did not
comply with Art 27 (1) (a), and secondly that since the grounds alleged amounted to
criminal offences, criminal charges ought to have been laid against the appellants in
preference to detention.

Held:
(i) It is a constitutional requirement that a statement furnished to a detainee in
terms of Art 27(1) (a) must specify "In detail" the grounds upon which he is
detained. "In detail" meaning that he must be supplied with sufficient
information to enable him make a meaningful representation.

(ii) It is important for the detainee to know what has been alleged against him,
but as to how much detail must be given and what constitutes vagueness will
depend upon the circumstances of each case.

(iii) Where facts are notorious or the detainee must himself know them, it
cannot be said that a failure to refer in the ground to these facts causes the
ground to fail to be in detail.

(iv) Where the grounds upon which the appellants were detained amount to
criminal charges the detaining authority has a discretion either to institute
criminal proceedings or to detain.

Kapwepwe and Kaenga v The People (1) followed

Cases referred to:

(1) Kapwepwe and Kaenga v The People (1972) Z.R. 248

(2) State of Bombay v Atma Ram Vaidya A.I.R. (1951) S.C. 157
(3) Herbert v Phillips and Sealey [1967] 10 W.I.R. 435
(4) Naresh Chandra v State of West Bengal A.I.R.(46) (1959) S.C. 1335
(5) Mhango v Attorney-General (1976) Z.R. 297
(6) Mutale v Attorney - General, (1976) Z.R. 139
(7) Chipango v Attorney-General (1970) Z.R. 31
(8) Knuller v D.P.P., [1971] 3 All E.R. 314
(9) United Bus Co. of Zambia Ltd v Shanzi (1977) Z.R. 397
(10) Kasote v The People (1977) Z.R. 75
(11) Mulwanda v The People (1976) Z.R. 133
(12) Joyce Banda v The Attorney-General (1078) Z.R. 233

Legislation referred to:

Preservation of Public Security Regulations, Cap. 106, reg. 33 (1).

Constitution of Zambia, Cap. 1, Art. 27 (1) (a).

For the appellants: E.T. Kategaya, Legal Aid Counsel.

For the respondent: A.M. Kasonde, Senior State advocate.

Judgment

SILUNGWE, C.J.: These are seven separate appeals from the refusal by the High Court to
issue writs of habeas corpus ad subjiciendum. The appeals have been heard together on
grounds of expediency as all of them raise identical issues.

The seven appellants were each detained pursuant to an order made under reg. 33 (1) of
the Preservation of Public Security Regulations and were furnished with grounds of
detention in terms of Art. 27 (1) (a) of the Constitution. The following are the grounds upon
which each one of them was detained:

"THAT between November 1972 and January, 1973 you and several other persons
did undergo military training by Portuguese and South African soldiers in Angola and South
West Africa respectively with the intention that after such training you would return to
Zambia to engage in acts of sabotage and to over-throw by unlawful means the
Government by law established.
AND FURTHER that you have been associated with ADAMSON B. MUSHALA a wanted
person who has been terrorising members of the public.
THESE acts are prejudicial to public security and it is feared that if left at liberty you
and your associates will indulge in further acts prejudicial to public security to secure and
preserve which it is considered necessary and expedient to control you by detention."

Mr Kategaya, on behalf of all the appellants, relies on two additional grounds of appeal. The
first of these has two legs, both of which stand on an allegation of vagueness and the
second alleges that criminal charges ought to have been laid against the appellants in
preference to detention.
It is fitting to deal first with the allegation of vagueness. In so far as the first leg of the
submission is concerned, it is contended that the expression "... you and several other
persons did undergo military training. . ." was vague. Mr Kategaya submits that it was not
enough for the detaining authority simply to state that his clients and severed other persons
had done what was alleged against them; he said the detaining authority ought to have
gone further and given the names of such persons. I do not consider that failure to give
names of other persons alleged to have undergone military training together with the
appellants in any way rendered vague that part of the grounds of detention. What was
really important was that each one of the appellants should know what had been alleged
against him, namely that between a specified period he had undergone "military training by
Portuguese and South African soldiers in Angola and South West Africa respectively with the
intention that after such training you would return to Zambia to engage in acts of sabotage
and to over-throw by unlawful means the Government by law established''. I have great
difficulty in appreciating how that information can be said to be vague. I am satisfied that
each one of the appellants knew perfectly well what was alleged against him and so the
appeal based upon this leg of the submission must, in my view, fail.

In regard to the second leg of the first ground of appeal, it is contended that the expression
". . . you have been associated with ADAMSON B. MUSHALA . . ." is vague by reason of the
fact that no details or instances of the said association were given and that, in consequence
of this, none of the appellants was able to make a meaningful representation to the
detaining authority.

It is a constitutional requirement that a statement furnished to a detainee in terms of Art.

27 (1) (a) must specify "in detail" the grounds upon which he is detained. The expression
"in detail" simply means that the detainee must be supplied with sufficient information so
that he is able to make a meaningful representation.

The term "associated" in the case before us must now be considered in order to ascertain
whether, on account of it, it can be said that the information supplied to all of the appellants
was vague and therefore constituted non-compliance with the constitutional provisions.

The question of vagueness has been discussed in several cases including Kapwepwe and
Kaenga v The People (1). There both Doyle, C.J., and Baron, D.C.J., cited the following
passage from the majority judgment delivered by Kania, C.J., in State of Bombay v Atma
Ram Vaidya (2):

"What is meant by vague? Vague can be considered as the antonym of 'definite'. If

the ground which is supplied is incapable of being understood or defined with sufficient
certainty it can be called vague. It is not possible to state affirmatively more on the
question of what is vague. It must vary according to the circumstances of each case. It is
however improper to contend that a ground is necessarily vague if the only answer of the
detained person can be to deny it. That is a matter of detail which has to be examined in
the light of the circumstances of each case. If on reading the ground furnished it is capable
of being intelligently understood and is sufficiently definite to furnish materials to enable the
detained person to make a representation against the order of detention it cannot be called
vague."

In the West Indian case of Herbert v Phillips and Sealey (3) A.M. Lewis, C.J., had this to
say:

"The object of requiring a detainee to be furnished with a statement specifying in

detail the grounds upon which he is detained is to enable him to make adequate
representations to the independent and impartial tribunal which the same section of the
Constitution requires to be set up for the review of his case. The statement is not required
to contain the evidence which has come to the knowledge of the Governor and which it may
be against the public interest to disclose. But it must, in detailing the grounds for detention,
furnish sufficient information to enable the detainee to know what is being alleged against
him and to bring his mind to bear upon it. A ground which is vague, roving or exploratory is
insufficient to enable a detainee to bring his own mind to bear upon any acts or words of his
which may possibly have attracted the attention of the authorities and from which the
Government has drawn conclusions adverse to him which satisfy the Governor that it is
necessary to exercise control over him. With such a ground an innocent person would not
know where to begin with the representation of his case to the tribunal."

Clearly, how much detail must be given and what constitutes vagueness will depend upon
the circumstances of each case. The Supreme Court of India aptly put it in this way in
Naresh Chandra v State of West Bengal (4) at p. 1341:

"Vagueness is a relative term. Its meaning must vary with the facts and
circumstances of each case. What may be said to be vague in one case may not be so in
another and it could not be asserted as a general rule that a ground is necessarily vague if
the only answer of the detained person can be to deny it. If the statement of facts is
capable of being clearly understood and is sufficiently definite to enable the detained person
to make his representation, it cannot be said that it is vague."

Mr Kasonde has argued on behalf of the respondent that there is nothing vague in the
grounds as furnished to the appellants in that Adamson Mushala's activities in Zambia are a
notorious fact and that by reference to the appellants being associated with Mushala the
appellants knew or ought to have known what it was that was being alleged against them so
that their minds could be brought to bear upon it to enable them to make meaningful
representations to the detaining authority. On the other hand, however, Mr Kategaya's
argument is that the words "associated" and "concerned" are synonymous and that since
the word "concerned" has judicially been held to be vague it follows that the word
"associated" must similarly be held to be vague. In support of his argument he has referred
us to Herbert (3) where Lewis, C.J., said:

"In the second ground in the statement in this case the crucial word is 'concerned'.
There could hardly be a less informative word. It may be a notorious fact that a rebellion
has occurred but how or where had the detainee exhibited his concern or implicated
himself? It is the detainee against whom action has been taken, it is his acts and words
which have been the subject of investigation by the executive, and he is entitled to be told
sufficient to enable him to explain them or to refute the conclusion before the tribunal, if he
is able to do so."

There, a detention order had been made and the grounds of detention were:

"That you Dr William V. Herbert, on several occasions during the year 1967, both
within and outside of the state, encouraged certain residents in the state and other persons
to use unlawful, felonious and murderous means to overthrow the lawful government of Her
Majesty in the state, and that you were concerned in armed rebellion against the said lawful
government, thereby endangering the peace, public safety and public order of the state."

It seems to me that Lewis, C.J., was justified in expressing himself that the word
"concerned" was not an informative one and that while it may be a notorious fact that a
rebellion had occurred there was nothing in the grounds to show how or where the detainee
had "exhibited his concern or implicated himself". A line must be drawn between Herbert (3)
and the present cases because here Adamson Mushala was named as the person with whom
the appellants had associated. Mushala's activities in Zambia were at all material times, and
still are, a notorious fact concerning which the appellants knew or ought to have known. The
grounds went further and stated that Mushala was "a wanted person who had been
terrorising members of the public". It is indeed common knowledge that as a result of his
activities there has been loss of human life. All this is a notorious fact in this land. As Doyle,
C.J., put it in Kapwepwe and Kaenga (1) at 30 p. 254:

"Where facts are notorious or the detainee must himself know them, it cannot be
said that a failure to refer in the ground to these facts causes the ground to fail to be in
detail."

It is my considered view that the word "associated" and, particularly in the context in which
it is used in the cases now before us, is sufficiently informative. I am, therefore, not
persuaded by Mr Kategaya's argument that that word is synonymous with the word
"concerned".

I would agree with the view expressed by Baron, D.C.J.., in Kapwepwe and Kaenga (1) at p.
260 where he said:

". . . it must be stressed that the President has been given power 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 who, perhaps because of
their known associates or for some other reason, the President believes it would be
dangerous not to detain."

In this case it is untenable to argue that the grounds of detention were vague. I am
satisfied that the appellants were supplied with sufficient information to enable them to
know what was alleged against them so as to bring they mind to bear on it thereby placing
them in a position to make a meaningful representation to the detaining authority. I would
dismiss the appeal based on this ground.

With regard to the second ground of appeal, it is Mr Kategaya's contention that the grounds
upon which all of the appellants were detained are tantamount to criminal charges for
criminal courts to deal with and that, although he is aware that the detaining authority is
not obliged to prefer criminal charges, such charges ought to have been laid against the
appellants in preference to detention. As Kapwepwe and Kaenga (1) is directly against him
on this point, it is his submission that the decision in that case be reconsidered with a view
to over-ruling it. He is unable to cite to us any authority to back up this submission. On the
other hand, Mr Kasonde argues that it is up to the detaining authority to choose whether to
detain or to prosecute and that in certain cases the detaining authority may prefer to detain
rather than to lay criminal charges simply on the ground that it may not have sufficient
evidence on which to prosecute the case and to prove it beyond a reasonable doubt. He
contends tat the question is simply one for the subjective satisfaction of the detaining
authority. He relies on Kapwepwe and Kaenga (1) for his submission, and cites from it the
following passage appearing in the judgment of Baron, 20 D.C.J., at p. 260:

"The machinery of detention or restriction without trial . . . is, by definition, intended

for circumstances where the ordinary criminal law or the ordinary criminal procedure is
regarded by the detaining authority as inadequate to meet the particular situation. There
may be various reasons for the inadequacy; there may be insufficient evidence to secure a
conviction; or it may not be possible to secure a conviction without disclosing sources
Information which it would be contrary to the national interest to disclose; or the
information available may raise no more than a suspicion, but one which someone charged
with the security of the nation dare not ignore; or the activity in which the person
concerned is believed to have engaged may not be a criminal offence; or the detaining
authority may simply believe that the person concerned, if not detained, is likely to engage
in activities prejudicial to public security. 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. These are far-reaching powers. In particular it must be stressed that
the President has been given power 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 who, perhaps because of their known associates or for some
other reason, the President believes it would be dangerous not to detain."

I think that the foregoing extract represents an accurate legal position on the question
whether the detaining authority may detain rather than lay a criminal charge. It is perhaps
necessary to emphasise here that, male fides apart, the detaining authority has a discretion
either to institute criminal proceedings or to detain. In my view Kapwepwe and Kaenga (1)
on the issue now under consideration is good law and as such no need arises for it to be
reconsidered. I am fully satisfied that the submission that the detaining authority ought to
have laid criminal charges against the appellants in preference to detention cannot be
sustained. I would dismiss the appeals based on this ground.

Judgment
BARON, D.C.J.: These are seven separate appeals which on the application of Mr. Kategaya,
who appeared on behalf of all seven appellants, were heard together, the two major
grounds of appeal being common to all seven cases and the seven appellants all having
been detained on identical grounds. Certain of the appellants, who at that stage were not
represented, advanced also one or two other grounds of appeal, but Mr 15 Kategaya
informed the Court that the appellants in question did not wish to pursue those grounds
particularly since, if successful, they could at best lead to the cases being sent back to the
High Court for hearing by different judges.

The appellants were detained under reg. 33 (1) of the Preservation of Public Security
Regulations (to which I will refer as the Regulations) and each was subsequently served
with a statement setting out the following grounds of his detention:

"THAT between November 1972 and January 1973 you and several other persons did
undergo military training by Portuguese and South African soldiers in Angola and South
West Africa respectively with the intention that after such training you would return to
Zambia to engage in acts of sabotage and to over throw by unlawful means the Government
by law established.
AND FURTHER that you have been associated with ADAMSON B MUSHALA, a wanted
person who has been terrorising members of the public.
THESE acts are prejudicial to public security and it is feared that if left at liberty you
and your associates will indulge in further acts prejudicial to public security to secure and
preserve which it is considered necessary and expedient to control you by detention."

Mr Kategaya advanced two grounds of appeal: first, that the ground of detention were
vague and did not comply with the provisions of Art. 27 (1) (a) of the Constitution; and
second, that the grounds, if true, were allegations of criminal offences and that the
appellants should therefore have been charged in court.

Mr Kategaya relied on Kapwepwe and Kaenga v Attorney-General (1) in which what is now
Art. 27 of the Constitution was considered. This Article provides that a person restricted or
detained under the authority of any such law an is referred to in Art. 24 or Art. 26 shall:

". . . as soon as is reasonably practicable and in any case not more than fourteen
days after the commencement of his detention or restriction, be furnished with a statement
in writing in a language that he understands specifying in detail the grounds upon which he
is restricted or detained."

On the question of what was sufficient to comply with the requirement of "specifying in
detail", it was held (per Doyle, C.J.) that "the ground must be given with sufficient
particularity in the circumstances of the case to enable an adequate representation to be
made", and (by me) that "the detainee must be furnished with sufficient information to
enable him to know what is alleged against him and to make a meaningful representation".

Mr Kategaya submitted that the grounds were vague in two respects: first, that the
allegation that the detainee "and several other persons" had undergone military training,
without those persons being named, prevented the appellants from making meaningful
representations to the detaining authority. In my view this argument is quite untenable.
Even in relation to a criminal charge it has never been suggested that the charge is
defective if it alleges that the accused on a stated date "with persons unknown did break
and enter . . ."; it cannot therefore be argued that 520 a detainee who is told that the
grounds for his detention are that he is believed to have undergone military training, in
named places and between stated dates, with other persons does not know what its being
alleged against him and is unable to make adequate or meaningful representations. I quote
from what I said in Kapwepwe and Kaenga (1) at p. 202, where 25 I was illustrating the
application of the test as to what amount of detail, and detail of what, would be sufficient in
any given case to comply with Art. 27:

"But, if the grounds were -

' . . . a belief that during the months of January and February, 30 1972,
you addressed meetingsin Lusaka at which you advocated the use of violence against
persons of different political or tribal affiliations . . .'

this would enable the detainee to make representations on the basis of alibi or
mistaken identity and also on the merits. For instance, he could say 'I have never addressed
meetings in that place' or 'During the months in question I was engaged in a course of
study in Dar-Es-Salaam', when the detaining authority would no doubt initiate the most
urgent inquiries as to the truth of these statements which, if true, must mean that a
mistake had been made.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. I particularly adopt and stress the words of Kania, C.J.,
already quoted above -
'It is however improper to contend that a ground is necessarily vague if the
only answer of the detained person could be to deny it'.

No doubt when the matter comes before the tribunal, the evidence on the basis of
which the detaining authority reached its conclusion will be presented, and at that stage the
detainee will have more particularised information to which to offer specific replies than is
contained in the statement of grounds; but it must be stressed that the grounds are
reasons, not detailed statements of the facts or the evidence, and the grounds cannot be
said to be insufficiently detailed simply because they do not recite the words the detainee is
alleged to have used."

Equally in this case, the grounds cannot be said to be insufficiently detailed simply because
they do not set out the names of the individuals (assuming in the appellants' favour that
the detaining authority was in possession of this information) with whom the appellants
were believed to have undergone military training.

The second respect in which Mr Kategaya submits that the grounds of detention are vague
turn on the words "And further that you have been associated with Adamson B. Mushala, a
wanted person who has been terrorising members of the public"; he submits that this
ground does not specify the acts or words on the part of the appellants, or the place or the
period, which point to the circumstances of association between the appellants and Mushala.
He cites Mhango v Attorney-General (5) a decision in the High Court, where Cullinan, J.,
said at p. 302:

". . . the grounds refer to a conspiracy of 'certain other persons' and to 'your
associates', that is, a conspiracy unlimited in persons; no date, no period not even the
particular year is specified; no place is mentioned; the type of crime in which it is alleged
the applicant engaged covers a wide range: more important, no reference is made to the
commission of any particular crime."

Mr Kategaya cites also Mutale v Attorney-General (6), where Bweupe, J., said at p. 144:

". . . the applicant is alleged to have 'conspired with other persons . . . to commit
crimes and that you organised and managed the commission of serious crimes . . .' I have
no doubt that when the detaining authorities referred to 'crimes' they meant 'crimes' in the
Penal Code. Under this Code we have numerous crimes ranging from misdemeanours,
felonies to treasonable acts. The applicant was left to wonder asto whether he conspired
with others to commit and organised and managed the commission of, say, treason, stock
theft, murder, aggravated robbery, kidnapping, rape, theft of motor vehicle, currency
smuggling, espionage, to name but a few. This was not the intention of Parliament that the
detainee should be left in the dark. Parliament placed a duty upon the detaining authority to
give sufficient information which should enable the detainee to know what is being alleged
and to bring his mind to bear on it. This duty is mandatory. It is my considered view that
the grounds as given would not assist the applicant to direct his mind to them . . ."

In both these cases the learned judges came to the conclusion, on a reading of the grounds
of detention, that they did not meet the test laid down in Kapwepwe and Kaenga (1); thus,
Cullinan, J., said in Mhango (5): "I consider that the applicant, to use the words of Lewis,
C.J., (in Herbert v Phillips and Sealey (3)) 'would not know where to begin with the
representation of his case' to the detaining authority", and Bweupe, J., in the passage
already quoted concluded that ". . . the grounds as given would not assist the applicant" to
make meaningful representations. The question for us is whether the grounds of detention
in the present case meet the test in Kapwepwe and Kaenga (1). If the grounds were on all
fours or even similar to those cases, notwithstanding that they are not binding on us, would
of course be given due consideration and their reasoning examined to see whether that
reasoning commended itself to the members of this court; but in fact I regard the present
grounds as significantly different. The appellants are not alleged, as in Mhango (5), to have
engaged in a conspiracy unlimited as to persons, without a date or a period or a place being
specified, or any particular type of crime; the appellants are alleged to have associated with
a notorious man (I will return to this question of notoriety), and the ground clearly implies
that the association with this man was during a time when he was a wanted person who
was terrorising members of the public. For similar reasons the facts in Mutale (6) were quite
different. The appellants cannot argue that they were left to wonder what kind of activity
they were believed to have been engaged in.

Finally on this ground, Mr Kategaya relied on Herbert v Phillips and Sealey (3) cited with
approval in Kapwepwe and Kaenga (1). Lewis, C.J., commenting on the stated ground of
detention "that you were concerned in armed rebellion against the said lawful Government,
thereby endangering the peace, public safety and public order of the State" said this:

". . . the crucial word is 'concerned'. There could hardly be a less informative word. It
may be a notorious fact that a rebellion has occurred but how or where had the detainee
exhibited his concern or implicated himself? It is the detainee against whom action has been
taken, it is his acts and words which have been the subject of investigation by the
executive, and he is entitled to be told sufficient to enable him to explain them or to refute
the conclusion before the tribunal, if he is able to do so."

Mr Kategaya submits that, just as the word "concerned" was regarded by Lewis, C.J., as
singularly uninformative, so the word "associated" should be regarded as similarly
uninformative. I would be prepared to agree that if the word "associated" had been used in
connection generally with armed rebellion the effect would have been similar; in other
words, I think Mr Kategaya would have an argument if the appellants had been alleged to
have "associated with armed rebellion" against the lawful Government. But the allegation
here is quite positive and informative; each appellant is alleged to have associated with a
notorious wanted man who was terrorising members of the public. Such association can be
valid ground of detention; in Kapwepwe and Kaenga (1) I said at p. 260:

"(The powers of detention) are far-reaching powers. In particular it must be stressed

that the President has been given power 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 who, perhaps because of their known associates or for some
other reason, the President believes it would be dangerous not to detain."

I am satisfied that the information given to the appellants enabled them to know what was
alleged against them and to make representations on the basis of alibi or mistaken identity
as well as on the merits.

I turn now to the question of notoriety. The authority here is once again Kapwepwe and
Kaenga (1). Doyle, C.J., at p. 254 said:

"Where facts are notorious or the detainee must himself know them, it cannot be
said that a failure to refer in the ground to these facts causes the ground to fail to be in
detail. It may well be that in some cases it is necessary that the grounds should, as
Magnus, J., said (in Chipango v Attorney-General (7)) be as particularised as they would
have to be in an ordinary pleading. I do not accept that this is a rule which applies
generally. The matter must be looked at from the point of view of the detainee himself.
Provided the ground is given with sufficient particularity to him in the circumstances of the
case to enable an adequate representation to be made by him there is in my view
compliance with the requirement to give in detail."

In the same case at p. 263 I said:

"In approaching the statement of grounds, one cannot look for language as precise
as that which one requires in legislation. This is not to say, of course, that the detaining
authority can use obscure language which the detainee might find ambiguous or indefinite;
but if the test postulated above, namely that a detainee must be given sufficient information
'to enable him to know what is alleged against him . . .' is to be properly applied, the
statement of grounds must be looked at from the point overview of the recipient.Thus it is
that a court is entitled to have regard to matters which are notorious in the country."

The name of Adamson Mushala is, and was at the time, notorious in Zambia. It was well
known that he was alleged to have received military training in a foreign country hostile to
the Government of Zambia, that he was alleged to have been actively engaged in the
recruiting and training of others with the object of overthrowing the Government of Zambia
by force, that the security forces of Zambia had been unable to apprehend him, and that he
had over a long period been terrorising the public. Whether or not these allegations were
true is not the issue; the issue is whether by alleging an association with Adamson Mushala
the detaining authority had sufficiently directed the minds of the appellants to the real
nature of the allegations being made against them. I entertain not the slightest doubt that
the appellants must have known precisely what was being alleged.

Mr Kategaya's second ground of appeal is that the allegations against the appellants were of
criminal offences, and that the appellants should therefore have been charged in court. Mr
Kategaya was aware that Kapwepwe and Kaenga (1), in which precisely the same argument
was advanced, was directly against him but he submitted that that case should be
reconsidered.

It is of course competent for this court to reverse a previous decision of its own. Before it
will do so, however, we must be satisfied not only that the previous decision was wrong but
also - and this is particularly so where the decision has been repeatedly followed over a
period of years - that there are very good reasons for not continuing to follow it: (see for
instance Knuller v DPP (8), United Bus Co. of Zambia Ltd v Shanzi (9) and Davis Jokie
Kasote v The People (10)).

The relevant dicta in Kapwepwe and Kaenga ( 1 ) are these: Doyle, C.J., at p. 250 said:

"The grounds for a detention order and for a criminal prosecution are entirely
different. The first may be mainly precautionary and based on suspicion. The second must
be proved beyond reasonable doubt. It is commonplace for a person to be acquitted in
circumstances which show that there is very strong suspicion that he committed the crime
but the reasonable doubt remains. It may well be, in a particular criminal case, that a man
is shown so clearly to be innocent, that the use of that charge against him for the purpose
of a detention order would be held to be unreasonable. That however cannot be a general
rule and it is certainly not per se a proof of unreasonableness that the detaining authority
has chosen to detain in preference to laying a criminal charge."

And at p. 260 I said:

"The machinery of detention or restriction without trial . . . is, by definition, intended

for circumstances where the ordinary criminal law or the ordinary criminal procedure is
regarded by the detaining authority as inadequate to meet the particular situation. There
may be various reasons for the inadequacy; there may be insufficient evidence to secure a
conviction; or it may not be possible to secure a conviction without disclosing sources of
information which it would be contrary to the national interest to disclose; or the
information available may raise no more than a suspicion, but one which someone charged
with the security of the nation dare not ignore; or the activity in which the person
concerned is believed to have engaged may not be a criminal offence; or the detaining
authority may simply believe that the person concerned if not detained, is likely to engage
in activities prejudicial to public security. 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."

Mr Kategaya submits that the powers of detention were not meant to be used to detain a
person for an indefinite period at the pleasure of the detaining authority without the person
being brought to trial. He submits that if it were proper to use the powers for these
purposes this would be a serious inroad into fundamental human rights as entrenched in the
Constitution and contrary to the democratic tradition of Zambia. He confessed however that
he had no authority for his proportion.

It cannot be argued that the power of detention given by reg. 33 (1) is ultra vires the
Constitution. It is not therefore open to this court to comment on the desirability of those
powers being on the statue book. The function of the courts is to apply the law according to
its terms while ensuring that the very wide powers that exist to combat subversion and to
safeguard public security are used strictly for the purposes for which the legislature
intended them and no other. The courts will interfere if the powers are abused (see for
instance Mulwanda v The People (11) and Joyce Banda v The Attorney-General (12)), but
not if they are used, as in the cases now before us, to combat subversion and to safeguard
public security.

I have no doubt whatever that the powers in question permit the detention of a person for
an indefinite period without that person being brought to trial. This does not mean that the
person will in fact be detained indefinitely; there are detailed provisions for the review of
the case of a detained person by the tribunal established under reg. 33 (7). Mr Kategaya
asks us to say that the period during which a person has been detained should be taken into
account in considering whether the original detention was lawful. I have great difficulty in
following this argument. If the original detention was lawful, as in my view it was since I do
not regard the grounds as vague, subsequent changed circumstances will not render it
unlawful ab initio. And furthermore it is specifically the function of the tribunal to which I
have referred to make recommendations to the detaining authority on the basis of any
changed circumstances; it would not be competent for this court to entertain any argument
based on changed circumstances, or in other words that it was no longer necessary for the
detention to continue.

In my view, there is no reason to think that anything Doyle, C.J., or I said in the passages
cited above from Kapwepwe and Kaenga (1) was wrong. I agree that these appeals must be
dismissed.

Judgment

BRUCE-LYLE, J.S.: I have had the opportunity to read the judgments of the Chief Justice
and the Deputy Chief Justice, and I also agree that the appeals be dismissed for the reason
stated in those judgments.

Appeals dismissed

BARRY JACKSON v ATTORNEY-GENERAL(1979) Z.R. 167 (H.C.)

HIGH COURT
SAKALA, J.
24TH MAY, 1979
1979/HP/636

Flynote

Civil procedure - Certiorari - Whether available against the decision of the Minister pursuant
to s. 22 (2) of the Immigration and Deportation Act.
Immigration and deportation-deportation - Section 22 (2) of Immigration and Deportation
Act - Minister's decision that applicant's presence "inimical" to public interest - Whether
courts can interfere.

Headnote

This was an application for certiorari to remove into the High Court and quash the decision
of the Minister by which he issued the applicant with a deportation order on the ground that
his presence in Zambia was inimical to public interest in terms of s. 22 (2) of the
Immigration and Deportation Act. The applicant appealed to the Minister and his appeal was
rejected.

In his application he contended that he should have been given a right to be heard, and
further that in rejecting his appeal the Minister acted judicially and as such acted arbitrarily
and contrary to the rules of natural justice. The respondent contended that under s. 22 (2)
the Minister was not required to give reasons for his decision or give the applicant a
hearing.

Held:
(i) The High Court has jurisdiction to grant orders of certiorari against certain
decisions of Ministers, public bodies or officers exercising powers which
involve the duty to decide judicially.

(ii) It is not for the courts to decide what is inimical to public interest, but for the
Minister, and when making an order under s. 22 (2) he is not a judicial officer
but he acts administratively. He is an executive officer bound to act in the
public interest, and it is left to his judgment whether upon the facts a non -
Zambian may be declared inimical to the public interest. The question of an
inquiry of affording the party an opportunity to be heard does not therefore
arise.

(iii) Certiorari cannot issue against an order made under that section.

(iv) A person declared inimical under s. 22 (2) is only entitled to be heard by way
of written representations, and is not entitled to be given reasons for
 rejection of his representation.

Cases referred to:

(1) R. v Electricity Commissioners, [1924] 1 K.B. 171

(2) R. v Manchester Legal Aid Committee, ex parte Brand, [1952] 1 All E.R.
480
(3) R. v Criminal Injuries Compensation Board, ex parte Lain, [1967] 2 All E.R. 770
(4) R. v Governor of Brixton Prison, ex parte Soblen, [1963] 2 Q.B. 243
(5) Rex v Leman Street Police Station Inspector, ex parte Venicoff, [1920]
1 K.B. 72

Legislation referred to:

Immigration and Deportation Act, Cap. 122, ss. 22 (2) and 24.

For the applicant: S. M. Patel, Solly Patel Hamir & Lawrence.

For the respondent: K.R.K. Tampi, Asst. Senior State Advocate.

Judgment

SAKALA, J.: On the 4th May 1979, in an ex parte application I granted the applicant, Barry
Jackson, leave to issue a notice of motion for an order of certiorari. The applicant is seeking
for an order of certiorari to remove into the High Court and quash the decision of the
Honourable Minister of Home Affairs by which he held that the applicant was not entitled to
remain in Zambia on the grounds that the Honourable Minister had in writing declared his
(applicant's) presence in Zambia to be inimical to the public interest.

The application is supported by an affidavit and statement on application. The respondent

filed no affidavit in opposition. There is no dispute as to the basic facts. These facts as per
affidavit and statement are that the applicant has been a continuous resident in Zambia
since November 1976. He is employed by International Computers (Zambia) Limited as
Bureau Manager. On the 22nd March 1979, the Minister of Home Affairs declared his
presence in Zambia to be inimical to the public interest in terms of s. 22 (2) of the
Immigration and Deportation Act Cap. 122. On the 3rd April 1979, he was served with a
Notice of Prohibited Immigrants to leave Zambia within forty-eight hours through the
International Airport to the United Kingdom. On the 4th April 1979, the applicant through
his advocates filed an appeal with the Honourable Minister of Home Affairs. On the 27th
April 1979, his advocates by a letter from the Permanent Secretary, Ministry of Home
Affairs, were informed that the Honourable Minister of Home Affairs had rejected his appeal.
The applicant states in his affidavit and statement that sometime at the beginning of
January 1979, there was a misunderstanding between the management and employees of
International Computers (Zambia) Limited. This misunderstanding was cleared up with the
help of the Principal Labour Officer to the satisfaction of both parties. The applicant states
that he has not been involved in any criminal activity and has a clean police record. He says
that should he leave Zambia, it would cause undue hardship on him and his family. On
these facts the applicant contends that he be entitled to remain in Zambia because the
Honourable Minister of Home Affairs was wrong in law in rejecting his appeal.

On behalf of the applicant, Mr Patel argued that the applicant does not know the reasons
why the order of prohibited immigrant was served upon him except because of a labour
dispute at his place of work which dispute was amicably settled between the management
and the employees with the help of the Principal Labour officer. Mr Patel pointed out that
the conditions of the settlement were that the applicant was not to renew his contract which
expires at the end of July and that he had to apologise in writing if he had offended any of
the employees. Mr Patel argued that the applicant could not be said to have been hostile to
Zambia or its citizens as suggested by the word "inimical". Mr Patel concedes that the
Minister's powers under s. 22 (2) of Cap. 122 are discretionary aimed at "safeguarding the
security of the State but submitted that discretionary powers should be exercised in good
faith and not arbitrarily or capriciously. Mr. Patel contended that when the Minister makes
an order of deportation he acts administratively. But when he decides on any
representations made against the order then he acts judicially. He submitted that in the
circumstances an order of certiorari would issue to a body not ordinarily called a court
against acts not necessarily termed judicial. Mr Patel also submitted that in general a
judicial act is one which involves the exercise of some right or duty to decide a question
affecting individual rights. He pointed out that although judges still speak as if the
availability of certiorari depends on whether the act impugned is judicial or imports an
implied duty to act judicially it is enough for a competent authority to be under a duty to act
fairly. He also submitted that a duty to act judicially in conformity with natural justice may
be inferred from the impact of an administrative act or decision on individual rights. He
submitted that the impact of the Minister's decision in the particular case is tremendous. He
argued that although the Minister is not obliged to give reasons for his decisions, if proved
that he did not act judicially the court should infer that he acted unreasonably and in bad
faith. Mr Patel further contended that the Minister is obliged to act in accordance with the
rules of natural justice, namely, that he should be disinterested and unbiased and a party to
be given an opportunity to be heard. He submitted that in the instant case the applicant was
only given forty-eight hours which was not in conformity with natural justice.

On behalf of the respondent, Mr Tampi asked the court to take judicial notice that the
applicant as a non Zambian is employed on a permit under Cap. 122. He submitted that s.
22 of Cap. 122 is applicable to all persons not citizens of Zambia. He argued that there are
no conditions under s. 22 which the Minister has to fulfil before declaring the presence of a
non Zambian inimical to the public interest. Mr Tampi vigorously argued that it was not the
intention of the legislature to give a non Zambian the right to be heard before the Minister
declared his presence inimical. He contended further that the language of s. 22 (2) of Cap.
122 clearly shows that Parliament has decided to confer on the Minister of Home Affairs
unfettered discretion to declare the presence of any person or any alien to be inimical
without giving any reasons at all. He submits that as the law stands it would be invidious to
go behind the Minister's decision and determine its reasonableness because to do so would
be dangerous to the security of the State. Mr Tampi submitted that the Minister's discretion
in matters of deportation is unfettered and is not bound to give any reasons and is not
bound to give any hearing. Consequently no certiorari lies in such cases.

Both learned counsel cited very useful authorities in support of their submissions. At the
outset, I would like to mention for my part that I do not doubt the High Court's powers or
jurisdiction to grant orders of certiorari against certain decisions of Ministers, public bodies
or officers exercising powers which involve the duty to decide judicially. (See O. 53/1/4 of
the Rules of the Supreme Court, 1979 Edn of the White Book.)

In the case of R v Electricity Commissioners (1) Atkin, L.J., at pp. 204 to 205 outlined the
acts in which certiorari may issue and the extent of its operations as follows:

". . . Certiorari requires the record or the order of the court to be sent up to the
King's Bench Division, to have its legality inquired into and, if necessary, to have the order
quashed. It is to be noted that both writs deal with questions of excessive jurisdiction; and
doubt less in their origin dealt almost exclusively with the jurisdiction of what is described in
ordinary parlance as a court of justice. But the operation of the writs has extended to
control the proceedings of bodies which do not claim to be, and would not be recognised as,
courts of justice. Whenever any body of persons having legal authority to determine
questions affecting the rights of subjects, and having the duty to act judicially, act in excess
of their legal authority they are subject to the controlling jurisdiction of the King's Bench
Division exercised in these writs."

In R v Manchester Legal Aid Committee, en Exparte Brand (2) Parker J., at pp. 487 and 489
put it as follows:

"That the local committee was a body of persons having legal authority to determine
questions affecting the rights of subjects was admitted and, indeed, is clear. The real
contest in the present case is whether they also had the duty to act judicially . . . The true
view, as it seems to us, is that the duty to act judicially may arise in widely different
circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define
exhaustively."

In R v Criminal Injuries Compensation Board, ex parte Lain (3) Lord Parker CJ, at p. 778
put the extent of certiorari as follows:

"The ambit of certiorari can be said to cover every case in which a body of persons,
of a public as opposed to a purely private or domestic character, has to determine matters
affecting subjects provided always that it has a duty to act judicially."

From these authorities the principle established seems to be that certiorari is intended to
control acts of those with the authority to determine questions affecting the rights of the
subjects. The control, however, depends on whether those authorities have a duty to act
judicially. In my humble opinion, the phrase "duty to act judicially" is synonymous do with
the phrase "duty to act fairly". That the Minister has a legal authority and duty to declare an
alien whose presence in Zambia in his opinion is inimical to the public interest is beyond
question.

Section 22 (2) of the Immigration and Deportation Act, Cap. 122, reads as follows:

"Any person whose presence in Zambia is declared in writing by the Minister to be

inimical to the public interest shall be a prohibited immigrant in relation to Zambia."

Both counsel, I think, concede that the Minister's powers to declare the presence of a non -
Zambian to be inimical to the public interest is discretionary. Both counsel further concede
that the Minister in declaring a person inimical to the public interest is not obliged to give
any reasons and is not obliged to give the party so declared an opportunity to be heard
before declaring him inimical to the public interest. I entirely agree with both learned
counsel's submissions on the discretionary powers of the Minister of Home Affairs when he
makes a declaration under s. 22 (2). This view is supported by several decided English
authorities. In the case of Regina v Governor, ex parte Soblen (4) at p. 298 is a passage in
the judgment of Lord Denning, M.R., which reads as follows:

"The third ground of challenge was that it was said that the Home Secretary could not make
a deportation order unless he had first given the person affected the opportunity to be
heard, and in this case the Home Secretary had made this deportation order against Dr
Soblen without any such opportunity being given. I quite agree that when a public officer is
given the power to deprive a person of his liberty or his property, the general principle of
our law is that that is not to be done without his first being given an opportunity of being
heard and of making representations on his own behalf. That has been the tenor of the
decisions of these courts for nearly 100 years. But there are exceptions. A statute may
expressly or by necessary implication provide that the person affected is not to be given a
right to be heard. Such an exception has been held to exist in the case of deportation
orders. In 1920 it was held by a Divisional Court in Rex v Leman Street Police Station
Inspector, Ex parte Venicoff that an alien has no right to be heard before a deportation
order is made against him. That case has been questioned before us and it has been
suggested that it was wrongly decided. All I need say about it is that in 1953, without any
dissent in Parliament, an Order was made in the very self-same words as the Order
considered in Venicoff's case. It is a reasonable assumption that Parliament proceeded on
the assumption that Venicoff's case was good law. And when I look to the objects of this
legislation, it seems to me that much of the purpose of it would be defeated, if it were
necessary for the Home Secretary always to give every alien the rights of being heard
before a deportation order is made. Reasons of security themselves might be such as to
make it unwise and undesirable to give him advance notice of the intention to make a
deportation order. He might well take advantage of it so as to absent himself and to avoid
apprehension. I think, therefore, that there is no right to be heard before a deportation
order is made."

In an old case of Rex v Leman Street Police Station Inspector, ex parte Venicoff (5) in
which a provision similar to s. 22 (2) of our Act was considered the Earl of Reading, CJ, at p.
78 put the matter as follows:

". . . I have no doubt that it is not for us to pronounce whether the making of the
order is or is not conducive to public good. Parliament has expressly empowered the
Secretary of State as an executive officer to make these orders and has imposed no
conditions."

At pp 79 to 80 he went on to say:

"In dealing with a regulation such as that, with which we are now concerned, the
value of the order would be considerably impaired if it could be made only after holding an
inquiry, because it might very well be that the person against whom it was intended to
make the deportation order would, the moment he had notice of that intention, take care
not to present himself and would take steps to evade apprehension. I therefore come to the
conclusion that the Home Secretary is not a judicial officer for this purpose, but an
executive officer bound to act for the public good and it is led to his judgment whether upon
the facts before him it is desirable that he should make a deportation order. The
responsibility is his."

For my part, I entirely agree with all these views. It is not for the court to decide what is
inimical to the public interest but for the Minister of Home Affairs. Parliament has seen it fit
to leave such a decision to the Minister of Home Affairs. I am satisfied for my part that
when the Minister of Home Affairs makes an order under s. 22 (2) of Cap. 122, he is not a
judicial officer in whatever context. He acts administratively. He is an executive officer
bound to act for public interest and it is left to his judgment whether upon the facts before
him it is desirable to declare a non - Zambian inimical to the public interest. The question of
an inquiry of affording the party an opportunity to be heard does not therefore arise.
Mr Patel's arguments and submissions on behalf of the applicant do not challenge the
Minister's order when made under s. 22 (2). I agree with Mr Tampi that no certiorari can
issue against an order made under that section. As already observed, there are several
authorities supported by this position. Paragraph (4) of the statement on application for
leave to apply for an order for certiorari reads as follows:

"In the premises the applicant is entitled to remain in Zambia and the Honourable
Minister of Home Affairs was wrong in law in rejecting the applicant's appeal to the
Honourable Minister."

The applicant's appeal to the Minister of Home Affairs was made pursuant to s. 24 (1) of the
Immigration and Deportation Act. The main ground of that appeal as set out in the exhibit
marked "BJ2" attached to the applicant's affidavit in support of the application is that should
the appellant leave Zambia it would cause undue hardship to him and his family. The
document also sets out matters on which the applicant relies for his argument not to leave
Zambia. Section 24 (1) (2) reads as follows:

"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 to the Minister against such requirement and such
representations shall be placed before the Minister without delay. If, after considering such
representations, the Minister does not think fit to exercise his 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."

Mr Patel's argument is that in rejecting the applicant's appeal the Minister of Home Affairs
acted contrary to the rules of natural justice. He contends that the applicant was not given
adequate notice and was not given an opportunity to be heard. He argues that to give a
person forty-eight hours within which to leave Zambia clearly suggests that the Minister did
not act judicially and not in accordance with the rules of natural justice.

The crux of the matter as I see it is whether the Minister of Home Affairs in the instant
application acted in excess of his powers (jurisdiction) and unfairly or unjudicially when he
rejected the applicant's appeal for this court to order the issue of certiorari. The applicant,
after the Minister made an order under s. 22 (2) of Cap. 122, was in terms of s. 23 served
with a notice to leave Zambia. The section provides the requirements to be complied with
by a person served with that notice. Among others, the person is required to leave Zambia
within forty-eight hours after service of notice if he has not made representations in terms
of s. 24 (1). This means therefore that the forty-eight hours period is not a matter decided
upon by the Minister or an immigration officer. It is a requirement by law. In the
circumstances, I cannot accept the argument that because the applicant was given
forty-eight hours, this in itself suggests bad faith on the part of the Minister in rejecting the
appeal. With regards to the other argument it has already been conceded that the Minister
is not obliged to have reasons for making an order under s. 22 (2) and he is not obliged to
give the party against whom the order has been made an opportunity to be heard. It follows
in my view that it would defeat the very purpose of s. 22 (2) if at the time of consideration
of the representations, the Minister should now hear the applicant and give him reasons for
his decisions. If the legislature intended that to be the procedure it would have said so. It is
significant to observe that s. 24 (1) clearly states that representations to the Minister be
delivered in writing. There is no requirement that the applicant shall be heard in person. The
Minister, after considering the written representations has a further discretion to reject
them if he "does not think fit to exercise his powers" of exempting the applicant.

In the case of Regina v The Governor of Brixton Prison, ex parte Soblen (4) Lord
Denning reserved his opinion on the question whether after a deportation order is made and
before it comes to be executed by removing the person out of a country an alien may not in
some circumstances have a right to be heard. In that case, the question did not arise
because the Home Secretary had stated his willingness to hear and consider any
representations which the person affected desired to make. In the instant case, I do not
need to reserve my opinion. The act specifically entitles a person who has been declared
inimical and who has been served with a notice to leave Zambia to make written
representations. The applicant did just that. After the Minister considered the
representations, he rejected them. In these circumstances it is argued that the applicant is
entitled to remain in Zambia because the Honourable Minister of Home Affairs was wrong in
law in rejecting the appeal. The question is not one of hardship. But was the Minister wrong
in law to reject the appeal? In my view, it has not been shown that in rejecting the appeal
the Minister was wrong in law or acted contrary to the rules of natural justice.

In passing, I wish to observe that I have myself grave doubts as to whether an order of
certiorari can issue against the Minister's rejection of written representations made by a
person whose presence had been declared inimical to the public interest. I make this
observation taking into account the objects of the Immigration and Deportation Act which
are to regulate entry into, and the remaining within Zambia of immigrants and visitors, and
also to provide for the removal from Zambia of criminals and other specified persons. I
make no decision on the matter as the facts of this case do not necessitate it. I leave the
issue to be decided in an appropriate case. But in my view the necessary implication from
the provisions of the Immigration and Deportation Act is that a person declared inimical
under s. 22 (2) is only entitled to be heard by way of written representations. He is not
entitled to be given reasons for rejection of his representations. For reasons already given, I
refuse to make the order of certiorari. The application is accordingly dismissed.

Application dismissed

FLUCKSON MWANDILA v THE PEOPLE (1979) Z.R. 174 (S.C.)

SUPREME COURT
GARDNER, A.G D.C.J., BRUCE-LYLE , J.S AND CULLINAN, AG. J.S.
23RD JANUARY AND 17TH MAY, 1979
S.C.Z. JUDGMENT NO. 13 OF 1979

Flynote

Criminal law and procedure - Charges - Duplicity - Effect of.

Criminal law and procedure - Charges - Procedure for laying charges under Penal Code and
other Acts.
Criminal law and procedure - Charges - Irregularity in charges - Power of appellate court.

Headnote

The appellant was convicted on three counts of causing death by dangerous driving and was
sentenced to eighteen months' imprisonment with hard labour on each count, to run
concurrently. The information against the appellant contained five counts of causing death
by dangerous driving, in each of which it was alleged that, on the same occasion, he caused
the death of five different persons. Counsel for the defence raised an objection to the form
of the charge in that, as the deaths of all five persons mentioned were caused by one single
act, it was oppressive to charge the appellant with a number of separate counts. The trial
Commissioner considered that he was bound by the decision of the Court of Appeal in which
it was held that where an accused was charged and convicted with causing the death of two
persons by dangerous driving and both deaths were laid in one count, the count would be
defective.

Held:
(i) The law relating to duplicity of charges is intended to avoid subjecting an
accused person to an unfair trial and to enable him to know the case against
him, so that he may in future plead autrefois convict or acquit.

(ii) Under s. 36 of the Penal Code it is mandatory for separate charges to be laid
where several acts are done in execution of one criminal purpose. However
that section only refers to charges brought under the Penal Code but not
those brought under any other Act.

(iii) If a person is charged under the Penal Code with an offence relating to one
act which causes harm to a number of victims, there must be a separate
charge in respect of each victim, but for charges brought under any other Act,
the practice set out in para. 48 of Archbold that the offence charged in one
count may relate to more than one victim is permissible.

(iv) In order to maintain uniformity of practice it is better that a similar practice

of charging in separate counts in the case of charges laid under Acts other
than the Penal Code be followed.

(v) The over-riding consideration is that there must be no injustice to an accused

person by embarrassing him with the form of charge. However unless a
substantial miscarriage of justice has been occasioned by an irregularity in
the form of the charge an appellate court has no power to allow an appeal on
the grounds of such irregularity.

Cases referred to:

(1) Moston Simunkombwe v The People C.A.Z. Judgment No. 29 Of 1970.

(2) R v Harris, [1969] 2 All E.R. 599.
(3) Chanda v The People (1975) Z.R. 131.
(4) Matongo v The People (1974) Z.R. 164.

Legislation referred to:

Penal Code, Cap. 146, ss. 2, 36.

Criminal Procedure Code, Cap. 160, s. 353.

For the appellant: N.R. Fernando and S.S. Phiri, Gib Chigaga & Co.
For the respondent: S. Ponnambalam, Assistant Senior, State Advocate.
Judgment

GARDNER, AG. D.C.J.: delivered the judgment of the court.

The appellant was convicted on three counts of causing death by dangerous driving and was
sentenced to eighteen months' imprisonment with hard labour on each count, to run
concurrently. The information against the appellant contained five counts of causing death
by dangerous driving, in each of which it was alleged that, on the same occasion, he caused
the death of five different persons. In the event the prosecution failed to prove the identity
of the deceaseds in counts three and four and the appellant was convicted of causing death
by dangerous driving of the persons named in counts one, two and five.

Defence counsel at the trial raised an objection to the form of the charge in that, as the
deaths of all five persons mentioned were caused by one single act, it was oppressive to
charge the appellant with a number of separate counts. The learned trial Commissioner,
whilst agreeing with the defence submission, considered that he was bound by a decision of
this court in Moston Simukombwe vThe People (1). In that case Doyle, C.J, giving the
judgment of the court, said that, where an accused was charged and convicted with causing
the death of two persons by dangerous driving and both deaths were laid in one count,
clearly the count was defective. There was no satisfactory evidence of identification in
respect of one of the dead persons. The Court of Appeal treated the charge as dealing with
the death of only one man and went on to say:

"It is fortunate for the State that by reason of their careless prosecution, they in
erect enabled a valid conviction on an in formation on its face irregular for duplicity."

Our attention was drawn to the cases referred to in Archbold Criminal Pleading, Evidence
and Practice, 39th Edn, paras 45 to 48. The learned authors, in dealing with the question of
duplicity, point out in para. 45 (i) that an indictment must not be double and that no one
count of the indictment should charge the appellant with having committed two or more
separate offences. A number of cases are cited which indicate that the courts have
sometimes attributed the wrong meaning to the word "duplicity", and, in particular, counsel
for the appellant referred to the case of R v Harris (2), in which the accused was charged
with buggery of a young boy and indecent assault on the same boy in respect of one and
the same incident and the Court of Appeal said:

"It does not seem to this court right or desirable that one and the same incident
should be made the subject matter of distinct charges so that hereafter it may appear to
those not familiar with the circumstances that two entirely separate offences were
committed."

The cause however is not applicable to the present case. It concerns - a multiplicity of
charges relating to the same action of the accused; it does not refer to one offence relating
to a number of victims. The whole of the law relating to duplicity is intended to avoid
subjecting an accused person to an unfair trial, so that he may know exactly what case he
has to answer, and so that he may in the future plead autrefois convict or acquit. It has
been frequently said by the Court of Appeal in England, and by this court, that it is
oppressive to an accused person - and onerous to the courts - to include too many counts in
one indictment; but the question of a charge being bad for duplicity and the question of
oppression are two different issues.

At para. 48 of Archbold, which deals with r. 7 of the Indictment Rules 1971 (the particulars
of which do not concern us here), it is stated that only one offence can be charged in one
count, though that offence may have more than one victim or target or object. We
respectfully agree with that statement of the practice as it should be applied in this country
in default of specific legislation to the contrary. There is however such legislation in s. 36 of
the Penal Code which reads as follows:

"36. With respect to cases where one act constitutes several crimes or where several
acts are done in execution of one criminal purpose, the following provisions shall have
effect, that is to say:

(a) Not applicable.

(b) If a person by one act assaults, harms or kills several persons or in any
manner causes injury to several persons or things, he shall on conviction be punished in
respect of each person so assaulted, harmed or killed or each person or thing injured; in
such case the court shall order a separate punishment in respect of each person assaulted,
harmed or killed or in respect of each person or thing injured. If the court orders
imprisonment, the order may be for concurrent or consecutive terms of imprisonment: . . ."

This section is mandatory and in our view it is procedurally impossible to order a separate
punishmen respect of each person assaulted, etcetera, unless separate charges are laid. We
note that s. 2 of the Penal Code provides as follows:

"2. Except as hereinafter expressly provided, nothing in this Code shall affect -

(a) the liability, trial or punishment of a person for an offence against the
common law or against any other law in force in Zambia other than this Code; or . . .

We construe this section as meaning that s. 36 refers to charges brought under the Penal
Code but not to charges brought under any other Act, for example, as in this case, the
Roads and Road Traffic Act. It follows therefore that if a person is charged under the Penal
Code with an offence relating to one act which causes harm to a number of victims there
must be a separate charge in respect of each victim, but in the case of charges brought
under any other Act the practice set out in para. 48 of Archbold, that one offence charged in
one count may have more than one victim or target or object, is at least permissible.
However for the sake of uniformity it would be better that a similar practice of charging in
separate counts in the case of charges laid under Acts other than the Penal Code be
followed. The over-riding consideration is that there must be no injustice to an accused
person by embarrassing him with the form of charge; but it should also be borne in mind
that s. 353 of the Criminal Procedure Code provides as follows:

"353. Subject to the provisions hereinbefore contained, no finding, sentence or

order passed by a court of competent jurisdiction shall be reserved or altered on appeal or
revision on any ground whatsoever unless any matter raised in such ground has, in the
opinion of the appellate court, in fact occasioned a substantial miscarriage of justice:
Provided that, in determining whether any such matter has occasioned a substantial
miscarriage of justice, the court shall have regard to the question whether the objection
could and should have been raised at an earlier stage in the proceeding."

This section is mandatory and unless a substantial miscarriage of justice has been
occasioned by an irregularity in the form of charge an appeal court has no power to allow an
appeal on the grounds of such irregularity.
In dealing with the remarks made by the Court of Appeal in the Simunkombwe case (1) we
observe that, although the form of charge was strongly criticised, the court did not quash
the conviction on the ground that the charge was bad for duplicity, nor did it apply the
proviso; the court dealt with the charge as it stood and, because there was insufficient
evidence of the death of one of the alleged deceased, proceeded to deal with the charge as
it related to the other deceased by dismissing the appeal. That case therefore did not set
out the procedure to be followed as a matter of law, but indicated only that the court
criticised the practice of charging more than one victim of one offence in one count. In
effect therefore the court indicated the desirability of charging separate deaths in separate
counts, which coincides with our view.

Counsel for the appellant commented that it was oppressive to charge separate counts for
each victim of one offence. We have already pointed out that this procedure is mandatory in
Penal Code cases; in other cases where the same procedure is adopted we can not agree
that, as a general rule, a number of such counts would be oppressive. While we respectfully
agree with the Court of Appeal in R. v Harris (2) that to charge an accused with buggery
and indecent assault in respect of the same incident is not right or desirable, we cannot,
with respect, agree that the reason for this is that it may appear to those not familiar with
the circumstances that two entirely separate offences were committed. In our view it is the
duty of any future trial court, when considering the previous convictions of a convicted
person, to ascertain the details of such convictions so that the court will not be misled as to
the number of offences which have been committed.

We will now deal with the merits of the appeal.

The prosecution evidence was to the effect that PW7 was driving 40 his Vauxhall car on
the Great East Road in the direction of Lusaka in the vicinity of the Barn Motel. PW8 was his
passenger and he was being followed by his friends in a Mini Cooper which was being driven
by one Rick Shipanuka (the deceased mentioned in the first count) whose passengers
included Joel Saidi (the deceased mentioned in the fifth count) and three persons, one of
whom was identified as the deceased mentioned in the second count. The time was shortly
after midnight and, as he was approaching a curve in the road, he saw a large vehicle which
had its full headlights on, approaching from the opposite direction coming out of the curve.
He stated that he dipped his lights as a signal to the oncoming truck but the driver of the
truck did not respond. He then saw that the truck was coming into his lane and, although he
swerved to his left, it hit his car on the right fender and along the right hand side of the car.
After this he heard a bang at a distance behind him, there was a collision and he found
himself trapped in his seat. In cross examination he said that, when the oncoming truck
came out of the curve, it was straddling the white line in the middle of the road and
thereafter it had come to strike his car in his lane. He denied that his friends in the Mini
Cooper behind had been attempting to overtake him as they approached the curve in the
road but conceded that he could not be positive about this. PW8, the passenger in PW7's car
confirmed the evidence of PW7 that the oncoming truck did not dip its lights in respose to
PW7's flashing of his own lights and he saw the oncoming truck coming into their lane
straight at their car. He confirmed that PW7 had swerved further to the left but that the
truck still came and collided with the side of their car.

PW11, a police inspector, said that he visited the scene on the night the accident took place
where he found three vehicles - a Vauxhall car which alas on the left hand side of the road
facing Lusaka with damage on its light hand side from the headlamp to tail, a Mini Cooper,
which was sixty-three feet behind on the left hand side of the road facing Lusaka and had
its roof ripped of and body shattered, and a GMC truck which was four hundred and twenty
feet from the road on the left side facing Lusaka with the front wheels of the truck having
rolled a further one hundred feet from the truck. He made a sketch plan, which was
produced to the court, and said that he established the two points of impact where the truck
collided with the other two cars by broken glass, which was strewn all over the place, as
well as by deep scratch marks on the tarmac. The first scratch mark in respect of the
Vauxhall started some feet from the middle line on its correct side to where the vehicle was
resting, and the scratch mark in respect of the Mini Cooper started a few feet from the
middle line on its correct side to where it was resting. The sketch plan also produced did not
show the deep scratch marks to which he had referred but depicted skid marks caused by
the truck as it came out of the curve onto its wrong side of the road and careered off the
road for four hundred and twenty feet. The s ketch plan also indicated by words two
"points of impact". There was also evidence from PW5, a police constable, who went to the
scene of the accident in the early hours of the morning; he confirmed the position of the
vehicles and their condition. He had also taken photographs the following morning but
observed no skid marks or brake marks. One of the photographs indicated that the greatest
concentration of broken glass was on the left hand side of the road facing Lusaka.

The prosecution established that the deceased persons referred to in counts one, two and
five had died as a result of the accident.

The appellant gave evidence on oath that he was travelling to Malawi in a large truck with a
heavy load of copper and that, before he reached a curve in the road, he saw two oncoming
cars coming out of the curve in the straight stretch of road on which he was travelling. He
denied that it was he who was emerging from the curve. He said that one of the cars
started to overtake the one in front and came onto his side of the road. He was travelling at
thirty-five kilometres per hour and, although he applied his emergency brakes and
attempted to swerve further to his left, he collided with the overtaking car and thereafter
lost control of the truck. He was not aware that he had collided with two cars.

The learned trial Commissioner commented that there was no direct evidence that the
collision took place in any particular lane and in resolving the issue, he bore in mind that it
was the appellant who had emerged from the curve and not the converse. He said that he
was satisfied that the collision with the Vauxhall was in that vehicle's own lane and he
accepted the evidence of PW11 as to what he observed at the scene and his evidence
relating to the sketch plan. From the evidence of the police officers he was satisfied that the
truck first collided with the Vauxhall and then with the Mini Cooper some sixty-three feet
behind in its correct lane. From the direction of the skid marks out of the curve, the
distance ploughed by the truck in the bush, the damage to the Vauxhall and the complete
destruction of the Mini Cooper he concluded that the appellant was driving at an excessive
speed as he came out of the curve and that is why he failed to take the curve in his own
lane.

Mr Fernando for the appellant argued that there were a number of discrepancies in the
evidence of the prosecution witnesses; that the sketch plan prepared by PW11 was totally
inadequate and that the witness's evidence differed from the contents of the sketch plan;
that PW5 gave evidence which differed from that of PW11 and that PW11 had drawn
conclusions which he was not entitled to draw. Counsel further argued that there were
discrepancies in the evidence of PW7 as to his position on the road when the accident
occurred; there was no expert evidence to support the learned trial Commissioner's findings
that because the truck had ploughed a long distance off the road it must have been
travelling at an excessive speed.
The discrepancies of PWs7 and 8 complained of by Mr Fernando related to their evidence as
to whether the occupants of both cars had been at a drinking party that evening and as to
the knowledge by PWs7 and 8 of the identity of the passengers picked up by the driver of
the Mini Cooper. The learned trial Commissioner considered the evidence of PWs7 and 8 and
although he did not consider in detail the discrepancies relating to whether or not any of the
parties had been drinking that evening and as to whether PWs7 and 8 knew the passengers
who were picked up by the driver of the Mini Cooper,; he found as a fact that the collision
occurred nearer to the centre of the road than the place stated by PWs7 and 8. However,
as he was so entitled, he took note of this discrepancy but accepted their evidence as to
which side of the road the collision occurred. In our view, such discrepancies as there were
could not have affected the learned trial Commissioner's assessment of the credit of these
two prosecution witnesses.
With regard to the evidence of PW11 however we are bound to agree with Mr Fernando that
the sketch plan produced by PW11 was quite inadequate. As we said in the case of Chanda
v The People (3):

"Once again we draw the attention of those responsible for the investigation of traffic
accidents to the importance of conducting a careful examination of the scene of an
accident, of taking the most careful measurements, and of the collection of evidence such
as skid marks or other kinds of tyre marks on the road, the precise position of broken glass
and dried mud droppings, the positions of the vehicles after the accident, the nature and
location of the damage to the vehicles, and so on. Evidence of this kind is what is commonly
termed the 'real' evidence in the case, in contra-distinction to the evidence of the parties
and other witness; almost invariably there will be conflicts of evidence as to how the
vehicles were being driven before an accident, what was the precise point of impact, and
how the vehicles behaved after the accident, and it is frequently possible to resolve such
conflicts by proper inferences drawn from the 'real' evidence at the scene."

We also commented that it was improper for a police officer to mark on a sketch "the point
of impact" because it is the duty of the witness to record his observation and it is for the
court to decide, on the evidence before it, the precise position of the point of impact.

The criticism of the oral evidence of PW11 however does not have so much validity.
Although PW5 said he saw no skid marks or scratch marks his evidence in this regard was
as follows:

"I observed no skid marks or brake marks on the road."

As an observant police officer one would have expected this witness to have seen such
marks if there were any, however his evidence is certainly not enough to contradict the
evidence of PW11 who categorically stated that the marks were there. Part of the evidence
of PW11 was supported by photographs indicating that the accident took place before the
Vauxhall and Mini Cooper entered the curve in the road and that the greatest concentration
of broken glass was on the left hand side of the road facing Lusaka. In our view, despite the
absence of full details on the sketch plan and despite the fact that PW5 did not confirm all
the evidence of PW11, the learned trial Commissioner was entitled to accept the oral
evidence of PW11 as to what he saw at the scene. Although it was improper for PW11 to
mark on the sketch plan the words "point of impact" it was not improper of the learned trial
Commissioner to arrive at the same conclusion and to adopt the conclusion of PW11 as to
the points of impact having regard to the evidence available to him. Taking into
consideration the positions of the two motor cars after the collision and haying regard to the
damage done to them, the learned trial Commissioner did not misdirect himself in finding
that the appellant had in fact collided with both cars and that the second car had not been
attempting to overtake at the time of the collision. Despite the criticisms of the evidence,
these conclusions were, in our view, properly drawn. We turn now to the question of
whether it was correct to find that at the time of the accident the appellant was driven
dangerously. As Mr Fernando has jointed out, there was no expert evidence as to how far a
truck heavily laden with copper could travel after a collision, even had it been travelling at
a moderate speed, and thereore the distances indicated are no reliable guide in assessing
the speed of the truck. However, from the evidence properly accepted by the learned trial
Commissioner, it is clear that the truck failed to negotiate the curve from which it was
emerging when it collided with the two cars. No explanation has been given by the appellant
for his failure to negotiate the curve - apart from a simple denial and a statement that the
accident occurred on his own side of the road. This denial was properly not accepted by the
trial Commissioner. In these circumstances it was proper for the learned trial Commissioner
to come to the only reasonable conclusion that the appellant failed to take the curve in his
own lane because of the speed at which he was travelling. In the event, whatever the speed
of the appellant's vehicle, it was evidently excessive in the circumstances, and we agree
with the learned trial Commissioner's conclusion that the appellant's driving fell far short of
the standard expected from a responsible prudent driver and that in the circumstances it
was therefore dangerous driving.

The appeal against conviction is dismissed.

The appellant was sentenced to eighteen months' imprisonment with hard labour on counts
one, two and five, the sentences to run concurrently; his driving licence was suspended for
two years.

Prior to sentencing the appellant the learned trial Commissioner said:

"I do not think that the accused in this case deliberately intended to drive with wilful
disregard but in these cases even the slightest mistake can cause serious results."

In the case of Matonga v The People (4) this court pointed out that, before a custodial
sentence is justified in a case of causing death by dangerous driving, there should be
recklessness or a wilful disregard for the safety of other users. We agree with the learned
trial Commissioner that in this case the appellant's driving was not reckless and was not in
wilful disregard of others. We therefore propose to allow the appeal against sentence.

The appeal against sentence is allowed; the sentences of eighteen months' imprisonment
with hard labour on counts one, two and five are set aside and in their place we substitute
concurrent fines of K500 on each count with five months' concurrent simple imprisonment in
default. As the appellant has already been in prison for five months and ten days he has
already satisfied the terms of this order. The suspension of the driving licence for two
years with effect from the 5th April, 1978 will stand.

Appeal against conviction dismissed

and that against sentence allowed

IBRAHIM MOHAMED SHERIFF NOOR v ATTORNEY GENERAL (1979) Z.R. 183 (H.C.)

HIGH COURT
BWEUPE, J.
29TH MARCH, 1979
1978/HN/551

Flynote

Immigration and deportation - Deportation order - Whether courts have jurisdiction to go

behind face of deportation order and query validity.
Immigration and deportation - Deportation order - Whether Minister bound to give reasons
for order.
Immigration and deportation - Deportation -Residents - Whether s. 22 (1) of Immigration
and Deportation Act applies to residents.

Headnote

The applicant sought a declaration that the deportation order issued against him by the
Minister under s. 22 (1) of the Immigration and Deportation Act was bad in law and
therefore null and void. It was established that the applicant had been a holder of a
Zambian resident permit since 1963. The Minister declared his presence in Zambia "inimical
to the public interest" and he was served with a notice to leave the country within
forty-eight hours as a prohibited immigrant. Representations were made to the Minister on
two occasions under s. 24 (1) but were rejected.

In his application the appellant asked the court to determine whether the provisions of s. 22
(2) of the Act applied to him and whether the Minister had acted lawfully in deeming him as
a person whose stay in the country was inimical to the public interest.

Held:
(i) Courts have jurisdiction to go behind the face of a deportation order and if
reasons given are not proved, queries as to its validity can be made.

(ii) The Minister is not bound to give reasons for the deportation under s. 22 (2)
of the Act. However courts can intervene if a prima facie misuse of power is
established, and the Minister will then be required to give an answer.

(iii) The applicant lawfully gained the status of an established resident and the
Minister's declaration under s. 22 (2) that his presence in Zambia was inimical
to the public interest was ultra vires that Act.

(iv) Section 26 (1) of the Immigration and Deportation Act empowers the Minister
to deport a person from Zambia where that person has been sentenced to a
term of imprisonment by the court.

(v) The provisions of s. 22 (2) of the Immigration and Deportation Act did not
apply to the applicant.

Cases reffered to:

(1) R. v Chilemba (1964) Z.R. 116.

(2) R. v Governor of Brixton Prison, ex parte Soblen, [1963] 2 Q.B. 243.

Legislation referred to:

Immigration and Deportation Act, Cap. 122, ss. 22 (2), 24, 26 (1).

For the plaintiff: L.P. Mwanawasa, Mwanawasa & Co.

For the defendant: S.C. Heron, Senior State Advocate.

Judgment

BWEUPE, J.: The applicant seeks a declaration that the decision purportedly made by the
Minister of Home Affairs in exercise of his discretion under s. 22 (2) of the Immigration and
Deportation Act, Cap. 122, was bad in law and therefore null and void and that the
defendant should be restrained from deporting the applicant from Zambia by reason of the
Minister's decision on 8th February 1977. In so doing he asks the court to determine the
following questions:

(a) Whether the plaintiff is a person to whom the provision of s. 22 (2) of the
Immigration and Deportation Act under which he was so declared apply; and
(b) Whether the Minister had acted lawfully in deeming the plaintiff as a person whose
stay in Zambia was "inimical to the public interest".

On the 8th February 1977, the Minister of Home Affairs declared the applicant's presence in
Zambia to be "inimical to the public interest," under s. 22 (2) of the Immigration and
Deportation Act, Cap. 122. In consequence thereof a notice to leave Zambia within
forty-eight hours as a prohibited immigrant was served upon the applicant on 30th
September 1977. Representations were made to the Minister on two occasions under s. 24
(1) of the Act but were rejected. In the affidavit filed in support of the application the
applicant deposes that he has been ordinarily resident in Zambia since 1963 and that he is
the holder of a resident permit No.S. 2418/73 issued to him by the Department of
Immigration at Lusaka on 13th February, 1974. Paragraphs 6 to 21 reads:

"6. That the events giving rise to my deportation are as follows: On Saturday the 9th
September 1976, at about 1900 hours while I was waiting in my car for the arrival of my
vegetable consignment from Kenya at the Lusaka International Airport I was approached by
Mr Kamana an Immigration Officer who was accompanied by another man who was
introduced as a detective police officer. The said Mr Kamana after asking me what was I
doing at the Airport requested me to produce my Import Licence for the vegetables. After
showing him my Import Licence Kamana asked me to accompany him to the house of his
superior, Mr Tilasi and I agreed.
7. That on arrival at Mr Tilasi's house and after being introduced, Mr Tilasi asked me
to show him my Import Licence and when this was done, he then asked me to produce my
Resident's Permit. At the time, all I had was a photostat copy of the Permit and Mr Tilasi
then took me to his office at the Immigration Headquarters where he prepared in my
presence a "Notice to Appear Before an Immigration Officer" which he served on me and he
requested me to appear before himself within 7 days with the original copy of my Residents'
Permit together with 'original documents which warranted the issue of the said' Resident
Permit by which he explained that any document showing that I had been in Zambia since
1963, would suffice e.g. UNIP Card. A copy of the said Notice is now produced and shown to
me as Exhibit 'IMSN 3'.
8. That I reported before Mr Tilasi on 16th September 1976, when I gave him my
said Resident Permit together with my UNIP Card and an invoice of certain personal items
bought by me in Zambia sometime previously. He kept these document and told me to
report back on 23rd September 1976.
 9. That on 23rd September 1976, Mr Tilasi told me to go back and that he would
write to me when he had completed his investigations into the manner by which I had been
issued the Resident's Permit.
10. That on the evening of 28th October, 1976 while I was at the Ndola Airport I
was arrested by Police Officers who told me that they were arresting me on Orders from
Lusaka Police. I was taken to Ndola Central Police Station where I was detained in cells until
the following day when I was driven to Lusaka at the Central Police Station there.
11. That at Lusaka Central Police Station the Officer who dealt with me was
Detective Inspector Ngulube. I asked him for the reason of my arrest and he could not tell
me except to ask me whether I had given any money to Mr Tilasi. When I refused he
accused me of lying and proceeded to asking several questions including the following to
which I answered as follows:

Questions Answers
Did you meet Tilasi. . . . Yes at his office.
Did Tilasi ask you about any- Yes, he asked me when I
thing came to Zambia.
Didn't you promise to meet No in fact I don't even
Tilasi at some Bar within drink
Lusaka
Didn't you meet Tilasi any- No
where else

12. That on 30th October 1976 my Advocate Mr Mwanawasa came to see me at

Lusaka Central Police Station and he told me that he had spoken to Mr Ngulube who said
that he was to charge me with Official Corruption for which I was to appear before the
Subordinate Court on Monday 1st November 1976.
13. That later that day, Mr Ngulube and I drove to Ndola where he searched my
house and took my National Registration Card together with correspondence from the
Ministry of Home Affairs in connection with my application for a Resident Permit as well as
Zambian Citizenship.
14. That we returned to Lusaka the same day and on arrival he released me from his
custody saying that I had no case to answer but that he would take me to Mr Tilasi who
would decide what he wanted to do with me. He returned all the documents taken by him at
Ndola. When we saw Mr Tilasi he asked me to see him the following morning at his office.
When I reported to Mr Tilasi the following morning he asked me to go away and told me
that he would contact me if there was any need.
15. That prior to this incident on 12th October 1976 my wife and I were served with
a Notice to appear before an Immigration Officer. I saw my advocates at Ndola who advised
me to see the Regional Immigration Officer and gave me a letter dated 12th November
1976, to take with me a copy of which is now shown and produced to me as Exhibit 'IMSN
4'. This time we saw Mr Ngulube, Immigration Officer to whom we gave all the documents
he wanted from us except my Resident's Permit which I told him was still with Mr Tilasi at
Lusaka.
16. That on 30th November, 1976 my advocates acting on my instructions wrote to
the Chief Immigration Officer inquiring when my Resident Permit would be returned and for
a letter confirming the fact that Mr Tilasi was keeping the Permit a true copy of the said
letter is now shown and produced to me as Exhibit 'IMSN 5'.
17. That there was no reply to that letter but in or about end of December, I left for
Kenya to attend my mother's funeral and did not return until middle of September 1977. I
am however informed by my advocates and verily believe that Mr Tilasi wrote to them on
17th March 1977 advising that I could see Mr Kamana at Ndola to provide me with the
'necessary papers' that I might require. A copy of his said letter is now shown and produced
to me as Exhibit 'IMSN 6'.
18. That upon seeing my advocates and being advised of the said letter, I went to
see Mr Kamana at the Ndola Immigration Office and asked for my papers. He told me that
he had no papers to give me but that he was going to detain me at Kansenshi Prison
pending arrangements for my deportation contending that my travel documents were not in
order.
19. That after personal representations, my advocates on 27th September 1977 filed
an Originating Notice of Motion for the issue of a Writ of Habeas Corpus at Ndola High Court
in Cause No.1977/HN/623 which was to be heard by the Honourable Mr Justice Moodley on
6th October 1977 had it not been for the fact that my advocates withdrew it after I had
been served with the said Notice to Prohibited Immigrants and Deeming Declaration on 30th
September 1977 when I was also released from detention at Kansenshi Prison.
20. That following the service of the said documents my advocates on 1st October
1977 appealed to the Minister on my behalf in terms of Section 24 of the Immigrant Act. A
copy of their said letter is now shown and produced to me as Exhibit 'IMSN 7'. My advocates
received a reply from the Permanent Secretary dated 29th November 1977 advising that
the appeal had been unsuccessful. A copy of the said reply is now produced and shown to
me as Exhibit 'IMSN 8'.
21. That on my instructions my advocate Mr Mwanawasa went to the Ministry of
Home Affairs at Lusaka to make personal representations on my behalf where I am advised
by him and verily believe that he was advised to lodge a second appeal to the Honourable
Minister of Home Affairs. A copy of my advocate's second appeal on my behalf dated 5th
January 1978 is now shown and produced to me as Exhibit 'IMSN 9'. To date there has been
no reply to the said appeal."

The Senior State Advocate, Mr Heron has filed an Affidavit in opposition of which paras. 3
to 5 reads:

"3. That I have in my custody a file No. N18/70, subject matter Ibrahim Mohamed
Sherrif Noor, belonging to the Immigration Department of The Republic of Zambia.
4. That from that file I am now producing herewith a true copy of a letter dated l5th
November 1976 addressed to the Honourable A.M. Milner, M.P., Minister of Home Affairs by
Mr A. Simataa, Chief Immigration Officer, the said copy of the letter is shown to me and
produced as 'Exhibit A'.
5. That I also produce from that file a copy of a letter dated 24th November 1976
addressed to Mr A. Simaa, Chief Immigration Officer, Lusaka, by Honourable A.M. Milner,
M.P., Minister of Home Affairs, the said copy of the letter is shown to me and produced as
'Exhibit B'."

For easy reference "Exhibit A" referred to in Mr Heron's affidavit reads:

"CONFIDENTIAL
The Honourable AM Milner, MP,
Minister of Home Affairs,
P.O. Box 1862,
Lusaka
Re: IBRAHIM MOHAMED SHERRIF NOOR
The above named person is a Kenyan national born at SIALO, Kenya in 1946. Mr
Noor holds a certificate of status as an established resident which was issued to him on 18th
February 1974.
2. In August this year our Crime Intelligence Unit here received information to the
effect that the above named person had obtained his certificate of status as an established
resident on the strength of forged documents and that he did not qualify for Zambian
residence status by virtue of having entered the country (Zambia) after 31st December
1963.
3. In order to confirm the reports the Unit instituted investigations into how he
obtained his certificates of status as an established resident.
4. On 9th September, 1976 he was intercepted at Lusaka International Airport by the
Unit. He was on the same day brought to this office where he was issued with Immigration
Form 2 to report to Immigration within seven days in order to produce the original copies of
his documents which warranted the issue of a certificate of status to him. The purpose for
the production of such documents was to prove their genuineness because it was not
possible to prove forgery in the absence of the original copies.
5. After he was issued with the said documents by Mr BS Tilasi the Investigating
Officer, he made a request of wanting to know Mr Tilasi's house or possibly meeting him
privately in town. Consequently Mr Tilasi refused to accept such appointment.
6. On the expiry of the seven days said above Mr Noor reported at Mr Tilasi's office
with an excuse that he was unable to produce the documents in question due to the illness
of his wife which resulted into him being unable to look for the same in his house. He was
on that day given a further period of seven days.
7. When the seven days elapsed he sent his friend Mr Musha a Zambian to report to
Mr Tilasi's office with an excuse that his wife was still ill. Mr Tilasi gave further extension of
seven days. When this seven days expired, Mr Noor failed to report to Mr Tilasi's office.
8. However, four days later on 21st October 1976 Mr Musha was again sent to Mr
Tilasi's office with a request for further extension but this time Mr Tilasi ordered Mr Musha
to leave his office in order to go and bring Mr Noor. Mr Musha then promised to do so the
following day.
9. On 22nd October 1976 in the morning Mr Noor reported to Mr Tilasi's office with
some of his documents leaving behind voters card No. 8070/145 which was a centre of our
investigations because earlier investigations had proved that the same belonged to MISS
TAITAS ANNE of House No. C11, Chifubu, Ndola. When he was asked as to why he had left
it behind, he said that he had failed to find it. But when Mr. Tilasi also asked him as to
whether the card was his, he confessed to say that it was not his. Mr Tilasi then asked him
to go back to Ndola in order to fetch it.
10. As he was leaving the office he proposed to meet Mr Tilasi at his Hotel Room, at
Lusaka during lunch hour. He also mentioned that he was going to tell Mr. Tilasi the truth as
to when he entered the country and where his documents came from.
11. Consequently since Mr Tilasi was suspicious about such a meeting he requested
the Senior Crime Intelligence officer Mr M. Muyunda to make arrangements with CID to
provide the necessary cover. The coverage arrangements were made but when Mr Tilasi
met subject at the place said above between 1300 and 1330 hours the recording system
failed to materialise because it was not possible to get a room where such machines could
operate. However, Mr Tilasi re-arranged the meeting to take place in the evening after he
was offered a bribe of K400.00 to enable him drop investigations and destroy some of the
records on the file.
12. Mr M. Muyunda was briefed the same day at 1415 hours and he made the
necessary arrangements with his officer Mr Musonda to provide the necessary coverage for
an arrest.
13. At 1830 hours Mr Tilasi met Mr Noor along Kafue Road as arranged. He was
bribed with K400.00 which is in my safe. During the hand over Mr Noor confessed he had
entered the country for the first time in 1966 and that he was then working as a driver. He
also revealed that the documents he produced were obtained from his friends and that the
purpose of the money was to enable Mr Tilasi drop the case because the certificate was
obtained improperly. The conversation was then being recorded in a tape which is now
being kept by Mr Musonda at Force Head-quarters.
14. After Mr Noor handed over the money Mr Tilasi drove to the spot where the
arresting was to take place but to his disappointment the arresting officers were still seated
in their vehicle contrary to the arrangements and as a result they failed to keep up with him
as he had to get into his car and drive away. They tried to follow him there but all in vain.
15. However, on 27th October, 1976 he was arrested in Ndola by our newly opened
Crime Intelligence Unit at our Ndola Regional Office and was handed over to the Police the
same day on instructions from our Unit there. Police in Ndola brought him to force
Headquarters where all his criminal charges were dropped because of insufficient evidence.
16. Lack of evidence came as a result of the failure of the Police to arrest him on the
act of bribery and also the none availability of the original voters card which the Police failed
to fetch from his house when they conducted a search on 30th October 1976.
17. From the foresaid information it has been agreed upon that subject be
recommended for deportation and that K400 in question now in my safe be paid to
Government Revenue. The reason for such action is to bar him from entering Zambia any
more in order to carry out such illicit activities on our officers. In this respect I should be
grateful if subject would be deemed Prohibited Immigrant in terms of Section 22 (2) of the
Act, Cap. 122.

A Simataa,
CHIEF IMMIGRATION OFFICER

c.c. The Senior Crime Intelligence Officer,

Force Headquarters,
LUSAKA"

The learned Senior State Advocate, Mr Mwape has contended:

(a) that the court has no power to go behind the order of deportation made by
the Minister;
(b) that the Minister is not bound to give reasons for his decision; and
(c) that there was no obligation on the part of the State to file an affidavit in
opposition.

In R. v Chilemba (1964) ZR at p. 116 it was held that courts have jurisdiction to go behind
the face of a deportation order and query its validity. S. A de Smith, Judicial Review of
Administrative Action, 3rd Edn, puts the matter as follows at p. 256:

"Hitherto Courts have held that they cannot go behind the Statement by a
competent authority (in the absence of proof of bad faith) that it was satisfied that the
statutory condition for the exercise of the power existed. This is now not law and the
position is that if prima facie grounds can be established for the proposition that the
Authority could not have been so satisfied, a Court will be entitled to hold the act or decision
invalid unless the authority itself persuades the Court that it did in fact genuinely form the
opinion which it claims to have held."

Paragraph 1009 p. 522 of Halsbury's Vol. 1, 3rd Edn also states:

"1009. The Secretary of State may also make a deportation order if he deems it to
be, conducive to the public good to do so. The exercise of the Secretary of State's discretion
in making a deportation order can not in general be interfered with by the Court. It is an
executive and not a judicial Act.
But there are dicta which support the view that in very exceptional cases the Court
has power to go behind an order for deportation or for arrest and detention pending
deportation ..."
It seems to me that there is now that school of thought supported by judicial dicta in R. v
Chilembe (1) and R. v Brixton Prison Governor ex parte Soblen (2) that the law at present is
that courts have jurisdiction to go behind the face of deportation and if reasons given are
not proved the courts have also jurisdiction to query the validity of the deportation order
made by the Minister. Hence Mr Mwape's first submission would fail.

I agree with Mr Mwape's second argument that the Minister is not bound to give reasons
under s. 22 (2) of the Act but as to his third submission that there was no obligation by the
State to file an affidavit in opposition S.A. de Smith at pp. 129 and 251 Judicial Review of
Administrative Action, 3rd Edn, has expressed the following views:

"If no reason for an administrative decision are preferred at all, it does not follow
that the Courts are powerless to intervene, for if a person seeking to impugn such a
decision establishes a prima facie of misuse of power by the administrative authority failure
by that authority to offer any answer to the allegations may justify an inference that its
reasons were bad in law or that it had exercised its powers for a legally inadmissible
purpose."

I hold the view that there was no error by the State in filing an affidavit in opposition. This
was done in an honest attempt to persuade the court from making an inference that there
has been a misuse of a discretionary power or that it has exercised its powers for a legally
inadmissible purpose. The question at stake is, however, as to whether the Minister acted
intra vires the act in exercising his discretion in making the order thereon. The affidavits
filed on both sides have to be scrutinised to find the answer. The affidavit purporting to
persuade the court filed by Mr Heron, the Senior State Advocate, has, in my view, no
evidential value because he has not stated that the facts contained in "Exhibit A" are true.
The contents of "Exhibit A" are based on what Mr Simataa was told by Mr Tilasi. Neither Mr
Simataa nor Mr Tilasi has been called to give evidence. The tape which is alleged to have
been recorded relating to the conversation between Tilasi and the applicant at the time the
alleged bribe of K400.00 was made, has not been produced despite the fact that it is still in
the custody of Mr Musonda at Force Headquarters in Lusaka. Nor has Mr Musonda himself
been called to give evidence. Even if Mr Heron had deposed to the truthfulness of Mr
Simataa's letter the mere production of the letter whose contents are based on information
given in the dark by Mr Tilasi to his Chief Immigration Officer who also in turn related it in
dark to the Minister of Home Affairs would have served no useful purpose to the court.

Nevertheless in his last para. 16 Mr Simataa concludes:

"16. From the foresaid information it has been agreed upon that the subject be
recommended for deportation and that the K400 in question now in my safe be paid to
Government Revenue. The reason for such action is to bar him from entering Zambia any
more in order to carry out such illicit activities on our officers. In this respect I should be
grateful if subject would be deemed Prohibited Immigrant in terms of Section 22 (2) of the
Act, Cap. 122."

And the Minister replies on 24th November 1976:

"May I refer to your Confidential Minute dated 5th November 1976 reference No. S.
2418/73 concerning a Mr Ibrabim Mohamed Sheriff Noor.
2. Your report makes very sad reading indeed. I cannot understand how the Police
failed to arrest Mr Noor when they had sufficient evidence that he was corrupting an
Immigration Official. I will follow up this part of the report with those concerned.
3. After having read your report I agree that Mr Noor be deported and steps will be
taken against Mr Tilasi. He is not fit to be in the Department. I thank you for bringing this
matter to my attention."

It is clear from the above quoted Minister's letter that what prompted the Minister's action
was the recommendation made by Mr Simataa that the applicant should be deported
because of the alleged assertion of Mr Tilasi that the applicant had given him K400.00 as a
bribe. The court is now asked to determine whether on the evidence before it the applicant's
presence in Zambia would be said to be inimical to the public interest.

I have already held that Mr Simataa's letter (Exhibit A) has no evidential value other than
that it purports to tell the court what motivated the Minister of Home Affairs to declare the
applicant's presence to be inimical to the public interest. It has also purported to give the
background as to what led the immigration officials to open a file on the applicant. However,
its contents cannot be treated as rebutting the applicant's affidavit. In that affidavit which
has not been challenged the applicant has established that he is a holder of a resident
permit No. S. 2418/73 obtained on 13th February 1974, and that he obtained it by virtue
of the fact that he came to Zambia in 1963. He further states that in that same year he
obtained a UNIP card which he produced as evidence to establish his residence in Zambia
for over four years. He also obtained the national registration card and made an application
for Zambian citizenship. All these documents (a) resident permit; (b) UNIP Card; (c)
national registration card; and (d) application for citizenship were deposited and are still
with the immigration officials.

There is no evidence to challenge the applicant's affidavit to the effect that he obtained the
resident permit lawfully. Section 2 of the Immigration and Deportation Act, Cap. 122 defines
"established resident" as meaning:

"In relation to any date, a person who is not a citizen or prohibited immigrant and
who has been ordinarily and lawfully resident in Zambia or the former protectorate of
Northern Rhodesia or both for the period of four years immediately proceeding that date."

and in Radebe (1972) ZR at p. 216 Doyle, C.J., had this to say:

"In order to be an established resident one has to reside in Zambia lawfully for a
period of four years immediately prior to the date in question."

There is no question that the applicant obtained his resident permit by using forged
documents because that has not been established by evidence in court. It is, therefore, my
view that for all intents and purposes the applicant has lawfully gained the status of an
established resident. I am, therefore, satisfied that the applicant has not violated the
provisions of the Immigration and Deportation Act. Prima facie, therefore, the Minister of
Home Affairs declaration that the applicant's presence in Zambia was inimical to the public
interst was ultra vires that Act.

It may be contended that the fact that there was an allegation that the applicant bribed the
Immigration Official, Mr Tilasi, would perhaps be justified for the Minister to act under s. 26
(1) of the Immigration and Deportation Act. For easy reference that section reads:

"26. (1) After receiving particulars under Section 33 of the Penal Code, the Minister
(unless the term of imprisonment is set aside on appeal) at expiration of the sentence
pursuant to a warrant under his hand deport such person from Zambia."

I must say that this section empowers the Minister to act where a person has been
sentenced to a term of imprisonment by the court. This is not the case here. The applicant,
according to the evidence before this court, came to Zambia in 1963; married to a
Zambian; has children; obtained UNIP Card in 1963; a holder of a resident permit and
national registration card; and has applied for citizenship. It would, in my view, be contrary
to natural justice that a person who has been in Zambia for fifteen years married with
children and is an established resident, would be thrown out of the country on information
provided to the Minister in the dark corner by an official who might have had an interest of
his own to serve. It is trite law that such a person should have been given an opportunity to
answer the charge before a court of law. It behoves those in the corridor of power,
therefore, to strive to be more cautious and adhere to the axiom of equitable principle that
no man shall be condemned unheard.

For the foregoing reasons I hold that the exercise of the Minister's discretion under s. 22 (2)
of the Deportation Act was ultra vires that Act as the applicant was an established resident
who had been in Zambia for fifteen years. In the circumstances, I hold that the applicant is
not a person to whom the provisions of s. 22 (2) of the Immigration and Deportation Act
under which he was declared apply and that the Minister did not act lawfully in deeming the
applicant's presence in this country to be inimical to the public interest. I would, therefore,
allow the application with costs against the State.

Application allowed

THE PEOPLE v KANGWA MWABA (1979) Z.R. 193 (H.C.)

HIGH COURT
CULLINAN, J.
10TH MAY, 1979
HPR/174/1979

Flynote

Criminal law and procedure - Juvenile offender - Order fining guardian for juvenile's offence-
Impropriety of.

Headnote

The juvenile offender was charged with and convicted of evading price control regulations.
His guardian who was present was fined K50 or one month's simple imprisonment in default
of payment.

Held:
(i) An order cannot be made against a parent or guardian under s. 73 of the
Juveniles Act unless the procedure set out in the case of Mkandawire and
Others v The People is followed.

(ii) There was no evidence indicating that the guardian had conduced to the
comission of the offence by neglecting to exercise due care of the juvenile.
Case cited:

(1) Mkandawire and Others v The People (1978) Z.R. 46.

Legislation referred to:

Juveniles Act, Cap. 217, ss. 73 and 74 (1).

Judgment

CULLINAN, J.: The juvenile offender was charged with evading price control regulations in
that he sold cigarettes at 5n and 4n each.

The record does not indicate the age of the juvenile offender or indeed whether any inquiry
as to his age was conducted in accordance with the provisions of s. 118 of the Juveniles Act,
Cap. 217. As to the presence of either parent or guardian at the hearing, the record
contains the endorsement "Mother present": the name or address of the juvenile offender's
mother was not recorded. The juvenile offender pleaded guilty and agreed with a statement
of facts whereupon the court recorded a finding of guilty. The public prosecutor indicated
that the juvenile offender was a first offender: no attempt was made to obtain a statement
of the juvenile offender's precedents, as required by the provisions of s. 64 (7) of the
Juveniles Act. In mitigation the juvenile offender indicated no more than that he was "a
school-boy in Mufulira". Thereafter the record reads:

"Guardian:
I am the one who is looking after the offender.
I ask the court to impose an order of corporal punishment.
Order: Guardian fined K50.00 or one month S.I. i/d I.R.A."

The name or address of the "guardian" is not recorded. It is not clear whether the
"guardian" was in fact the "mother" of the juvenile offender or vice versa. The warrant of
commitment on default of payment of a fine of K50 attached to the record is made out in
respect of one Ndelefina Kenala, so I can only presume that the "guardian" was of that
name.

An order cannot be made against a parent or guardian under s. 73 of the Juveniles Act
however unless the procedure set out by Silungwe CJ, in the Supreme Court case of
Mkandawire and Others v The People at p. 4 is followed. As it was not followed in this case I
consider that the trial magistrate's order was a nullity. I had considered sending the record
back to the court below so that the proper procedure in the matter could be followed. I
observe however that there was not an iota of evidence before the court to satisfy the
proviso to s. 74 (1) of the Juveniles Act, that is to indicate that the guardian had "conduced
to the commission of the offence by neglecting to exercise due care of the juvenile".

For the avoidance of doubt, I order that the order of the fine of K50 or one month's simple
imprisonment in default of payment thereof be set aside. Under all the circumstances I
consider that it would be in the interests of justice to order that the juvenile offender be
absolutely discharged and I so order.

Order set aside

BERNARD CHILUNDA v ZAKARIA CHINANZI (1979) Z.R. 195 (H.C.)

HIGH COURT
SAKALA J
5TH MARCH 1979
1975/HP/938

Flynote

Tort - Damages - Assessment of under the Fatal Accidents Acts 1846 to 1908 and Law
Reform (Miscellaneous Provisions) Act 1967 - Action by personal representative.
Damages - Law Reform (Miscellaneous Provisions) Act Cap. 74 and Fatal Accidents Acts
1846 to 1908 - Assessment of damages.

Headnote

The deceased, aged fifty-one years, died in a motor accident caused by the negligent
driving of the defendant. The plaintiff sued as a personal representative of the deceased's
estate claiming damages under the Fatal Accidents Acts 1846 to 1908, and the Law Reform
(Miscellaneous Provisions) Act 1967. He claimed that the deceased lost her normal
expectation of a happy life and her estate suffered loss and damage. In his evidence he
stated that the deceased used to look after their children but after her death he had to
employ a servant. There was no other dependence proved.

Held:
(i) Under the Fatal Accidents Acts, damages are intended to compensate the
dependants of the deceased for the loss of the pecuniary benefits derived
from the relationship subsisting between them. They are not necessarily
restricted to compensation for the loss of support, whether in cash or in kind.
Generally the starting point for assessment of damages in cases of this nature
is the amount of dependency. An amount of K500 would be an adequate
reward under this claim.

(ii) Under the Law Reform (Miscellaneous Provisions) Act 1967 damage are
recoverable for the benefit of the estate of the deceased.

(iii) In assessing damages for loss of expectation of life a very moderate figure
should be awarded. A sum of K100 would be adequate under this head.

Cases cited:

(1) Benham v Gambling, [1941] 1 All ER 7.

(2) Yorkshire Electricity Board v Naylor, [1967] 2 All ER 1.
(3) Cain (Administrator of the Estate of Jill M Cain)( Deceased) v Wilcock (1968) 1 WLR
1961.
(4) Mulenga v Rucom Industries Ltd (1978) ZR 21

Legislation referred to:

Fatal Accidents Acts 1846 to 1908.
Law Reform (Miscellaneous Provisions) Act 1967, Cap. 74.

For the plaintiff: M W Mwisiya, Mwisiya v CO.

For the defendant: No appearance.

Judgment

SAKALA, J.: The plaintiff's claim as an administrator of the estate of Elinah Mununga the
deceased under the Fatal Accidents Acts 1846 to 1908 and under the Law Reforms
(Miscellaneous Provisions) Act 1967 is for damages for negligent driving by the defendant of
a motor vehicle registration number EX 1555 in consequence of which the deceased was
killed in a road accident on Chitanda Road Matero on the 27th July 1974.

The statement of claim states that the plaintiff is suing as a personal representative of the
estate of Elinah Mununga, the deceased. The statement also alleges that the defendant was
at the material time the driver of a Renault motor vehicle registration number EX 1556.
Paragraphs (3) and (4) of the statement of claim read as follows:

"On or about the 27th July 1974 at or about 2000 hours the deceased was lawfully
walking along Chitanda Road when she decided to cross the road;
While the deceased was crossing the road as aforesaid the defendant so negligently
drove the aforesaid motor vehicle along the said road that he knocked down and injured the
deceased. The deceased died as a result of the said injuries.

PARTICULARS OF NEGLIGENCE
The defendant was negligent in that he:
(a) drove too fast
(b) failed to keep any proper look out
(c) failed to stop after the accident and render assistance to the said
Elinah Mununga the deceased."

The plaintiff contends that by the foregoing the said Elinah Mununga was killed and died on
the 27th July 1974, and lost her normal expectation of a happy life and her estate has
suffered loss and damage. Hence the plaintiff claims damages.

The plaintiff Enock Mbonge, a grocer at Matero market, told the court that the deceased
Elinah Mununga, was the young sister of his mother. He said before she died she stayed
with him and used to look after his children as he and his wife work at the market. The
plaintiff testified that as a result of her death he has had to employ a house servant to look
after his children. He pays the servant K30 a month. He further testified that the deceased
died at the age of 51 years. He said on the 27th July 1974, his aunt the deceased left to see
his young sister in the same compound, Matero. But later learnt of her death at 2000 hours.
The next morning he went to University Teaching Hospital mortuary and confirmed her
death. The plaintiff testified further that he arranged for her burial. He paid K75 for the
coffin. He hired a vehicle at K62 to transport the body. He said he also spent K132 to buy
food for mourners. The plaintiff also said he visited the scene of the accident. This was in
Matero on Chitanda Road.

PW2 Moses Mwanza a registry clerk with Chigaga and Company told the court that on the
27th July 1974, at about 2000 hours he was coming from Matero Girls Secondary School
walking along Chitanda Road while three people were walking behind them about three
hundred yards away from them. At the same time a motor vehicle was coming behind. He
said the vehicle hit the woman and killed her. He told the court that before the woman was
hit, he saw the vehicle travelling at a high speed. He said at this particular place, there were
many people and the road passes near a bar. He said after the woman was hit the car did
not stop but continued at a high speed. He said the men with the woman who was hit
shouted to them to write down the number of the vehicle. He wrote down the registration
number as EX 1555. This witness also told the court that he gave evidence at the
subordinate court against the driver of the vehicle in question in connection with the same
accident. He knew the name of the man as Zakaria Chinanzi. In answer to a question by
court the witness said the road had street lights.

The defendant, despite various notices of hearing including one by advertisement did not
attend court. As a result the court having satisfied itself that there was adequate service of
notice of hearing proceeded without the attendance of the defendant. The defendant has
filed a statement of defence. According to the statement of defence the defendant denies
paragraph one of the statement of claim. He alleges that he was employed to drive a motor
vehicle registration number EX 1555 but denies paras (3) and (4) of the statement of claim
and contends that he did not drive negligently as alleged. Paragraph (5) of the defence
reads as follows:

"Further or alternatively the matters complained of were caused wholly or in part by

the negligence of the deceased ELINAH MUNUNGA

PARTICULARS OF NEGLIGENCE

(1) Failing to keep any or any proper look-out or to observe oncoming vehicles
and to look where she was going;
(2) Crossing the road without observing or looking to see whether there were
motor vehicles on the road;
(3) Running to cross the road in front of an oncoming motor vehicle."

It is convenient at this point to make general observations with regards to the manner of
pleadings in this case. According to the Statement of claim the plaintiff does not plead any
special damages and yet his evidence sets out the amounts he is paying for his house
servant. He has also listed funeral expenses without pleading them. It is trite law that
special damages must be specifically pleaded (see O. 18/13/29 of 1976 edition of the White
Book). It is also trite law that the parties are bound by their pleadings. The function and
purpose of pleadings is too well known, namely not to take the other side by surprise and to
enable the other side to know the case he is to meet. The simplest thing counsel for the
plaintiff should have done in the present case was to apply to amend the statement of
claim. This was not done. Consequently and regrettably I cannot make any award on special
damages should I hold that the defendant was negligent.

Turning to the statement of defence one observes that in para. (2) the defendant denies
driving the motor vehicle in question at the material time. Yet in para. (4) he denies driving
negligently. At the same time he alleges in para. (5) that the deceased died as a result of
her own negligence. I find the whole defence to be full of contradictions. How can the
defendant deny driving at the material time and at the same time deny driving negligently
and further allege negligence on the part of the deceased if he was not at the scene at the
material time.

On the evidence before me, I am satisfied that the deceased died as a result of the accident
in which a motor vehicle registration number EX 1555 driven by the defendant on 27th July
1974, along Chitanda Road in Matero around 2000 hours was involved. I accept and find
this as a fact. I am fortified further in my findings by document number one in the agreed
bundle of documents which is a police report of the accident in which it is stated as follows:

"The accident was finalised as follows: Mr Zakaria Chinanzi fined a total of K100 for
failing to stop and render assistance to injured (2) failing to stop after accident (3) willing to
report accident to police."

I am again further fortified on this point by the evidence of PW2 who told the court that he
testified against the defendant at the subordinate court in connection with the same
accident.

The question is whether the defendant drove negligently. The only evidence, I have, comes
from the plaintiff and his witness. According to PW2 the vehicle was driven at a high speed.
It was a crowded area. There was a bar near the road at the scene. There were street
lights. The defendant continued driving at a high speed even after hitting the deceased. He
never stopped. This evidence has not been challenged. I have no alternative but to accept it
as representing the truth and I do accept it. From this evidence the only reasonable
inference is that the defendant drove negligently in that he drove too fast and failed to keep
any proper look-out. As a result of this negligent driving he knocked down and injured the
deceased and the deceased died as a result of the injuries suffered in this accident.
Accordingly I hold that the plaintiff has established negligence on the part of the defendant.

The final issue is one of quantum of damages. Fortunately for me as already observed I do
not need to concern myself with special damages as they have not been pleaded. I will
therefore concern myself with general damages only. The task of assessing damages, in
particular general damages is not an easy one. The authorities on the subject never disclose
uniformity. In point of fact it is rare if not impossible to find identical cases. The awards in
each case depend on various factors. In the instant case the plaintiff is suing as a personal
representative of the deceased under the Fatal Accidents Acts 1846 to 1908 and under the
Law Reform (Miscellaneous Provisions) Act of 1967. Hence the factors affecting the awards
in such a case are not only various but complicated. Under the Fatal Accidents Acts
damages are intended to compensate the dependants of the deceased for the loss of the
pecuniary benefits derived from the relationship subsisting between them. It has thus been
said that damages are not necessarily restricted to compensation for the loss of support,
whether in cash or in kind. (See para. 430 Clerk and Lindsell on Torts, 14th Ed.) Generally
the starting point for assessment of damages in cases of this nature is the amount of
dependency. On the evidence before me, I have no doubt that the plaintiff depended on the
deceased to look after his children. I have no evidence of any other persons who were
dependent on the deceased. According to the evidence as a result of the deceased's death
the plaintiff has had to employ a house servant to look after his children. The court does not
know how many these children are and how old they are in order to determine for how long
the plaintiff will have to use the services of the house servant. These factors are important
in my view in the assessment of damages under the Fatal Accidents Acts. Doing the best I
can in the circumstances and taking into account the devaluation of the kwacha and also
considering that the deceased died at the age of fifty-one and taking into account the risk
that the dependency might probably not have lasted long, I consider that K500 would be an
adequate reward under the Fatal Accidents Acts.

Under the Law Reforms (Miscellaneous Provisions) Act, Cap. 74, damages are recoverable
for the benefit of the estate of the deceased. The plaintiff has pleaded loss of the deceased's
normal expectation of a happy life.

Under the heading of expectation of life, assessment of damages in terms of money is a

very difficult matter. The problem of assessment of damages under this heading was raised
for the first time in the House of Lords in the case of Benham v Gambling (1). The brief
facts as they appear from the headnote are that a boy of the age of two-and-a-half years
was killed in a road accident. The damages for loss of expectation of life were assessed at
1,200 pounds. The House of Lords held that the proper assessment of such damages in a
case, where the prospects of the boy were particularly favourable was 200 pounds. The
assessment of such damages was not to be made upon an actuarial basis. It is not the
assessment of compensation for loss of years or for the loss of future pecuniary prospects
but it is the fixing upon commonsense principles of a reasonable figure -for the loss of
prospective happiness. From p. (11) to p. (12) Viscount Simon, LC, put the matter as
follows:

"The House is now set the difficult task of indicating what are the main
considerations to be borne in mind in assessing damages under this head, and, in the event
of its differing from the view taken in the courts below, of deciding whether this difference is
of a kind which would justify interfering with the figure of 1,200 pounds fixed by the judge.
In the first place, I am of opinion that the right conclusion is not to be reached by applying
what may be called the statistical or actuarial test. Figures calculated to represent the
expectation of human life at various ages are averages arrived at from a vast mass of vital
statistics. The figure is not necessarily one which can be properly attributed to a given
individual. In any case, the thing to be valued is not the prospect of length of days, but the
prospect of a predominantly happy life. The age of the individual may, in some cases, be a
relevant factor-for example, in extreme old age the brevity of what life may be left may be
relevant - but, as it seems to me, arithmetical calculations are to be avoided, if only for the
reason that it is of no assistance to know how many years may have been lost unless one
knows how to put a value on the years. It would be fallacious to assume, for this purpose,
that all human life is continuously an enjoyable thing, so that the shortening of it calls for
compensation, to be paid to the deceased's estate, on a quantitative basis. The ups and
downs of life, its pains and sorrows as well as its joys and pleasures-all that makes up life's
fitful fever'-have to be allowed for in the estimate. In assessing damages for shortening of
life, therefore, such damages should not be calculated solely, or even mainly, on the basis
of the length of life which is lost. Asquith J, appreciated this view, as his judgment shows,
but I think that, in the light of the large amounts awarded in some previous cases in respect
of quite young children, the figure he arrived at was unduly swollen by the consideration
that the child might otherwise have had many years of life before it."

Later at p. 12 he said:

"I would rather say that, before damages are awarded respect of the shortened life
of given individual under this head, it is necessary for the court to be satisfied that the
circumstances of the individual life were calculated to lead, on balance, to positive
measure of happiness, of which the victim has been deprived by the defendant's negligence.
If the character or habits of the individual were calculated to lead him to a Future of
unhappiness or despondency, that would be circumstances justifying a smaller award."

And at p. 13 he had this to say:

"I would further lay it down that, in assessing damages for this purpose, the question
is not whether the deceased had the capacity or ability to appreciate that his further life on
earth would bring him happiness. The test is not subjective, and the rights sum to award
depends on an objective estimate of what kind of future on earth the victim might have
enjoyed, whether he had justly estimated that future or not. Of course, no regard must be
had to financial losses or gains during the period of which the victim has been deprived. The
damages are in respect of loss of life, not of loss of future pecuniary prospects.''

Later on the same page he observed as follows:

"I would add that, in the case of a child, as in the case of an adult, I see no reason
why the proper sum to be awarded should be greater because the social position or
prospects of wordly possession are greater in one case than another. Lawyers and judges
may here join hands with moralists and philosophers and declare that the degree of
happiness to be attained by a human being does not depend on wealth or status."

Finally on the point on the same page his Lordship put the matter as follows:

"These considerations lead me to the conclusion that, in assessing damages under

this head, whether in the case of a child or an adult, very moderate figure should be
chosen."

The house of Lords in the Benham (1) case hoped that the views expressed in that case will
help "to set a lower standard of measurement than has hitherto prevailed for what is in fact
incapable of being measured in coin of the realm with any approach to real accuracy."

The Benham (1) case has been referred to, followed, considered, observed and
distinguished in several cases. For my part I entirely agree with his lordship's views. The
Benham (1) case was also considered in the case of Yorkshire Electricity Board v Naylor (2).
The brief facts from the headnote are that a young man, aged twenty died instantaneously
as the result of an electric shock suffered in the course of his employment by the appellants
who admitted liability. His mother as administratrix brought an action under s. 1 of the Law
Reform (Miscellaneous Provisions) Act, 1934, claiming damages for the benefit of his estate
in respect of his loss of expectation of life. The trial judge awarded 500 pounds damages,
but on appeal the Court of Appeal increased the amount to 1,000 pounds. The House of
Lords again held that in awarding 500 pounds damages for loss of expectation of life the
trial judge had rightly had regard to the principle stated by Viscount Simon, L.C., in Benham
v gambling (1) that in assessing such damages very moderate figures should be chosen,
and as the trial judge had neither misapprehended the facts nor made a wholly erroneous
estimate of the damage, his award should stand; moreover the sum of 1,000 pounds
awarded by the majority in the Court of Appeal was not a sum that could be described as
moderate. Lord Devlin at p. (12) observed as follows:

"It would, I think, be a great improvement if this head of damage was abolished and
replaced by a short Act of Parliament fixing a suitable sum which a wrongdoer whose act
has caused death should pay into the estate of the deceased. While the law remains as it is,
I think that it is less likely to fall into disrespect if judges treat Benham v Gambling (64) as
an injunction to stick to fixed standard than if they start revaluing happiness, each
according to his own ideas."

These two cases were also considered in the case of Cain (Administrator of the Estate of
Jill M Cain) (deceased) v Wilcock (3). It would appear rather erroneously that some writers
appear to suggest that that case disapproved the two cases. It will however be noted that
the two cases are House of Lords' decisions while this last case was by Court of Appeal. My
understanding of the Cain (3) case is that it reaffirms the House of Lords' decisions. While it
may be said that these are English authorities based on circumstances different from those
obtaining in Zambia, I take the view that it is only fair to say that English decisions in
particular House of Lords' decisions deserve to command highest respect even in countries
where they are merely of persuasive value.

Turning to the case at hand all the court knows is that the deceased who looked after the
children of the plaintiff died on the 27th July 1974 at the age of fifty-one as a result of the
negligent driving of the defendant. On these facts the plaintiff is claiming damages for loss
of expectation of a normal happy life. I must say with fairness that the court has not been
greatly assisted with matters relevant to assessment on this head. The court does not know
the type of life the deceased was leading and how happy it was. Be that as it may, I am
asked to award some figure in terms of money. Proceeding from the expressed views in
English authorities which I entirely accept that the figure should be "moderate" and taking
into account the scanty information about the deceased as presented before me and also
bearing in mind that since 1967 the value of the kwacha has greatly been reduced, I
consider a figure of K100 to be quite "moderate" in the circumstances. Accordingly, I award
the sum of K100 under this head of loss of normal expectation of a happy life. The total
award is therefore K600 broken down as follows:
K
Under the fatal Accidents Act .. .. 500
Under the Law Reform
(miscellaneous Provisions) Act 1967 .. 100

The award is with costs. In terms of the recent Supreme Court decision (see Jacob Mulenga
v Rucom Industries (4)), I award interest on the amount awarded at a rate of 7 per cent
from the date of the writ of summons to the date of this judgment.

Damages awarded

PESULANI BANDA v THE PEOPLE (1979) Z.R. 202 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., BRUCE-LYLE, J.S., AND CULLINAN, AG. J.S.
13TH MARCH AND 17TH MAY, 1979
S.C.Z. JUDGMENT NO. 14 OF 1979

Flynote

Evidence - Confession statement - Whether court can convict on uncorroborated confession.

Evidence - Documentary evidence - Document not produced in court - Evidence adduced as
to its content - Whether admissible - Counsel not objecting to its being acquitted - Whether
renders document admissible.

Criminal law and procedure - Unsworn statement - Accused giving unsworn statement -
Whether liable to questioning by court.

Headnote

The appellant was convicted of murder. The prosecution adduced a confession statement,
the admissibility of which was objected to on the grounds of duress. After a trial within a
trial the trial judge ruled that the statement was admissible, but held that before he could
convict on the confession statement alone there must be some other evidence pointing to
guilt. At the trial the appellant elected to make an unsworn statement in which he denied
any knowledge of the case, and the trial judge questioned him as to whether he had ever
worked for the deceased. On receiving an affirmative answer the trial judge used such
answer as other evidence pointing to the guilt of the appellant and supporting the
confession.

Further evidence consisted of a piece of paper alleged to have been found in the house of
the deceased with the name and address of the appellant written on it. This paper was not
produced in court.

Held:
(i) The case of Hamainda v The People (2), which required that before there can
be a conviction on a confession statement alone there must be some other
evidence pointing to the accused's guilt which renders it safe to rely on a
confession, has been over-ruled by Donald Maketo & 7 Others v The People
(3), and it is possible and proper in a proper case to conviction an
uncorroborated confession

(ii) In any particular case it is entirely within the discretion of the court to prefer
not to convict on a confession alone unless there is additional evidence which
renders it safe to do so.

(iii) When an accused elects to make an unsworn statement he is not subject to

cross-examination by the prosecution nor to questioning by the court except
to elucidate unclear details or to clarify ambiguities.

(iv) If the contents of a document are referred to in evidence either the document
should be produced, or acceptable evidence should be given as to why its
production is impossible. Lack of objection by a defence counsel does not
render admissible that which is inadmissible.

Cases cited:

(1) Zeka Chinyama & 2 Others v The People S.C.Z. Judgment No. 27 of 976.
(2) The People v Hamainda (1972) Z.R. 310.
(3) Donald Maketo & 7 Others v The People S.C.Z. Judgment No. of 1979
(4) Banda v The People (1968) Z.R. 6.

For the appellant: G.M. Sheikh, Senior Legal Aid Counsel.

For the respondent: L.Nyembele, State Advocate.

Judgment

GARDNER, AG.D.C.J.: delivered the judgment of the court.

The appellant was convicted of murder, the particulars of the charge being that on the 30th
March 1977, at Lusaka he murdered Naik Sunil. There was evidence for the prosecution that
the body of an Asian man was found at house No. 402 Obote Road, Lusaka, lying on the
floor with bedding material on top of it. PW1, Dr NS Pastel, a Government forensic
pathologist, was present when the house was opened by the police and he confirmed the
death. He also carried out a post-mortem examination and found than the deceased had
been strangled with a neck-tie which was subsequently identified as belonging to the
deceased. This witness also found a bone-deep stab wound on the right side of the face, a
bone-deep stab wound on the left forehead, two bone-deep lacerations on the back of the
head, swelling with haemorrhage on the left side of the head and swelling with laceration on
the right side jaw. There was some confusion as to who identified the body to this witness.
He himself said that it was identified to him by Mr V.L. Desai but no one with these initials
and name was called by the prosecution. A Mr J.D. Desai said that he was friend of the
deceased but had not attended the post-mortem. PW3, Mr K.K. Naik, gave evidence that he
also was a friend of the deceased and was present when the police broke into the house and
discovered the body. He said that he identified the body to PW1 and he was present at the
post-mortem. The doctor said that the body was identified to him at the post-mortem as Mr
Agabhah Dahyabhai Naik, and PW2 gave the same names of the deceased. There is no
doubt that all three witnesses were talking about the same man because they all said that
he was the one who died on the 30th March 1977, and they all said that he lived at 402
Obote Road, Lusaka. The post-mortem report produced by PW1 gives the name of the
deceased as Chhanganlal Dahyabhai Naik, and the copy in the case record indicates that the
body was identified by "Desai. Friend." The original of the post-mortem report indicates that
the body was identified by "V. L Desai Friend.', PW5, Sub - Inspector Field Banda, gave
evidence that' he was present at the post-mortem when the body was identified by PW3, Mr
K.K. Naik, to PW1, the pathologist. He did not say what name was given as that of the
deceased by PW3 but said that there were two other Asian men present at the
post-mortem, one of whom had married the deceased's daughter. The only other evidence
material to the identity of the deceased was the warn and caution statement, admitted in
evidence as exhibit P2, in the vernacular original of which the name of the deceased is given
as Mr C.D. Naik Sunil. We would comment here that the English translation produced by the
prosecution refers in one place to Mr C.D. Patel Naik and in another to Mr C.D. Naik Sunil.

No evidence was given by any witness to the effect that the deceased was known by the
name Sunil, and there is no explanation as to why the name Sunil appears in the particulars
of the charge. In analysing this confusing evidence the learned trial judge found that he was
satisfied that the body found in house No. 402 Obote Road was the body of the owner of the
house whose name was Mr Naik. He pointed out that the body had been seen in the house
by PW1, the pathologist, prior to the post-mortem examination and had also been seen
there by PW3 whose identification of the body was confirmed by PW5. The learned judge
then said that he could not see how the confusion as to the name helped the defence case,
and in the circumstances even agree with him. Counsel for the appellant did not take the
point that the name on the charge was different from the various names attributed to the
deceased, and we find that the appellant was not prejudiced. Mr Sheikh, Legal Aid Counsel
for the appellant, did not raise this issue as a ground of appeal but we have raised it
because we must comment that the confusion should never have arisen. It is difficult to
understand how it was possible for the doctor who produced the post-mortem report
relating to C.D. Naik (with his full name) could have given evidence that the name of the
deceased was A.D. Naik (with his full name), and the State Advocate who had PW1's
statement to the police before him should have cleared up this discrepancy when the
witness first referred to A.D. Naik. Furthermore, the translator of the original warn and
caution statement was careless in his translation and added to the confusion. The
post-mortem report indicated that the identification of the body was by Mr V.L. Desai
whereas the State Advocate who was prosecuting had before him a statement of PW3, Mr
K.K. Naik, who was in fact the identifying witness, and this discrepancy should have been
investigated before the case was presented to the court. None of the police statements refer
to the deceased as Naik Sunil and whoever drafted the information should have been aware
of the discrepancy.

Turning now to the rest of the evidence, the prosecution produced statement made by the
appellant in which he said that for a week before the 30th March he had been arguing with
the deceased about 70n which was owed for his work as a servant of the deceased, and on
the 30th March they quarrelled, as a result of which he took up a broom and hit the
deceased with the handle so that he fell under the bed. He then said he took the deceased
and tied him up, and on his way out of the house he took away a wristwatch belonging to
the deceased. The admissibility of this statement was contested by defence counsel and a
trial-within-a trial was heard after which, the learned trial judge being satisfied that it was
admissible, the statement was admitted in evidence.

There was further evidence that PW4, a police officer, found a piece of paper in the house
with the appellant's name and address written on it and, using this information, he traced
the appellant and found him wearing a wristwatch on the back of which the name C.D. Naik
was engraved. In cross-examination this witness said that an attempt had been made to file
off the name so that only the letters "C" and "ik" were discernible.

In his defence the appellant gave an unsworn statement in which he said that he did not
know the case and did not know when the offence occurred. He was asked by the learned
trial judge whether he knew the deceased and he replied that he did piece-work for the
deceased from the 8th March to the 15th March.

In his judgment the learned trial judge said that he was able to convict on the confession
statement provided there was additional evidence which pointed to the accused's guilt. He
found such additional evidence in the fact that the appellant was a servant of the deceased
and that a watch was found on him with the initials C.D. and he was satisfied that it was
saw to rely upon the confession in order to support the conviction.

Mr Sheikh appealed on the ground that the statement should not have been admitted and
that in his ruling on the subject the learned trial judge had failed to analyse the evidence
correctly and had failed to exercise his discretion to exclude the statement. In the trial
within a trial the appellant gave evidence that he had been arrested on the 13th April and
had been taken to Kabwata police station at about 1600 hours and immediately he was
questioned about person who died. His clothes were stripped off and PW4 and another
police officer started beating him with a hose pipe on his feet and fingertips, and with belt
on his buttocks. That night he was put in a cell but throughout the night he was taken out of
the cell and suffered more beating. During this night he had only his underpants to wear. He
said that during this time he was given nothing to eat until sunset on the 14th of April and
that the statement which was produced was not taken at 1400 hours but later than that. He
said he signed the statement because he was being subjected to beatings. He said that he
was so severely injured on the feet that he could not walk and, although he appeared before
two courts before finally being remanded to the High Court for trial by senior resident
magistrate, and, although he had complained to those two courts, the first magistrate, Mrs
Nyoni, told him that he could complain to the next court where he would be taken, and
when he appeared before the next court, which was Mrs Sitali's court, he was told there was
no help they could offer. Finally when he appeared before the senior resident magistrate he
did not complain although he was still unwell at the time, in that his skin was coming off but
he did not know whether it was caused by the beatings. In January 1978 he attended the
prison clinic where he was given some tablets. He maintained that although he had asked
the prison authorities if he could go for treatment immediately after the beating they
refused to allow him to do so; he said that he ha not complained to the various magistrates
about this refusal to give him treatment but only about the fact that he had been beaten.

The prosecution called evidence in the trial-within-a trial from PW4, the investigating officer,
and PW6, another police officer who was present when the statement was taken. They both
denied that any form of duress had been applied to the appellant and, although neither of
these witnesses could say whether or not the appellant was fed on the 13th April, PW6 said
that on the 14th he gave the appellant bananas, Coca - Cola and a loaf of bread. The
appellant said that he was arrested on the 13th April, he spent the night at Kabwata Police
Station and sometime after sunrise on the 14th before he made his statement he was told
he would be taken to Woodlands Police Station where they were going to teach him
something. He said he spent the night at Woodlands Police Station and was taken back to
Kabwata the following day so that the statement was taken on the 15th April not the 14th
as it was dated. PW said that when the accused was arrested on the afternoon of the 13th
April he was taken to Kabwata and that the appellant was transferred to Woodlands Police
Station because they had proper cells there. When he was cross-examined it was put to him
that he had taken the appellant to Woodlands Police Station that night but he said he was
not responsible for transporting the accused on that day. He said there were no facilities for
providing food at Kabwata. PW5, police officer from Woodlands Police Station, in answer to
leading question by the prosecuting State Advocate said that the appellant was brought to
Woodlands Police Station at 1850 hours on the night of the 14th April, 1977, that he was
removed from Woodlands the following morning and that he did not see him again. PW6
confirmed that on the 14th April, the statement was taken from the appellant. In referring
to the discrepancies in the evidence the learned trial judge accepted the evidence of the
appellant that he had spent the first night at Kabwata Police Station where there was no
proper cell accommodation. He accepted the police evidence that the statement was taken
in the afternoon of the 14th April which he found to be a period of fifteen to twenty hours
after the apprehension of the appellant. The learned judge said that the issue must be
resolved on the basis of credibility and having heard the witnesses he found that he could
not accept the appellant's evidence that after he complained of his beatings to the two lower
courts he was told there was no help they could offer. But having heard and seen the
prosecution witnesses he had no hesitation in finding that they had treated the accused
fairly. Whilst accepting that the appellant was not given food on the 13th April he said that
he was unable to find that this was aimed at inducing the appellant to make a statement.
He accepted the evidence that the appellant was given food on the morning of the 14th
April. The learned trial judge also considered the exercise of his discretion and considered
the allegations of beatings, prevention from sleep, denial of food and water, and the unduly
lengthy period. The learned judge said after considering these allegations he rejected them
as untrue and that he was satisfied that the confession was voluntary. In quoting the case
of Zeka Chinyama and Two Others v The People (1) the learned judge referred to the
passage therein in which this court said that a court would first satisfy itself that a
statement was freely and voluntarily made and then, if so satisfied, "a court in a proper
case must then consider whether the confession should in the exercise of its discretion be
excluded, notwithstanding that it was voluntary and therefore, strictly speaking, admissible
because in all the circumstances the strict application of the rules as to admissibility would
operate unfairly against the accused". In this case the learned trial judge found that there
was no impropriety on the part of the police and there was therefore no reason for him to
exercise his discretion to exclude the statement. The learned trial judge did not specifically
deal with the only matter of possible impropriety, as distinct from duress, which was the
question of the unduly lengthy period; but it is quite clear from the tenor of his ruling in this
matter that be did not consider that the delay before taking the statement, from
approximately 1600 hours on the 13th April to 1400 hours on the 14th April, was unduly
lengthy and in this respect, although Mr Sheikh has urged us to find that there were
grounds for the exercise of the judge's discretion, we agree with the learned trial judge
that, having dismissed the evidence relating to duress, there was no unfair conduct to give
rise to the exercise of his discretion. Mr Sheikh argued that on the analysis of the evidence
the learned trial judge should not have accepted the evidence of the police officers, that he
should have considered what happened at Kabwata on the night of the 13th April, and the
fact that PW4 said there were no facilities for food at Kabwata, and the discrepancy between
the evidence of PWs 4 and 6 where one said that only two police officers were present
when the statement was signed and the other said that a third police officer was present.
The evidence of PW4 that no facilities for food were available does not in any way contradict
the evidence of PW6, who said he purchased the bananas, Coca - Cola and bread from the
market and the discrepancy in the evidence as to who was present could be attributed to a
lapse of memory on the part of one or both of the police witnesses and should not affect the
acceptance of their general evidence as being true. At this stage, before the learned judge
saw the contents of the statement, and on the evidence adduced in the trial-within-a trial,
the learned trial judge was entitled, as he did, to accept the evidence of the prosecution
and disbelieve that of the defence. There is nothing in the evidence or the learned judge's
ruling to justify finding by this court that no reasonable court could have arrived at the
same findings of fact.

However, in dealing with the matter in his final judgment the learned judge said that he had
still to consider the question of the admissibility of the statement if there was other
evidence in the whole of the trial which made it necessary so to do. He found no such
evidence, and he then considered what weight should be attached to the confession. He
decided, having considered the case of Hamainda v The People (2), that he could convict on
the confession statement alone provided that there was some other evidence pointing to the
accused's guilt which rendered it safe to rely on the confession. This court dealt with the
question of convicting on confession statement alone in the case of Donald Maketo &
Seven Others v The People (3) in which Silungwe C.J., referring to other authorities and in
particular to the case of Banda v The People (4), where the Court of Appeal said that it was
possible and proper in proper case to convict on an uncorroborated confession, said:

"In the light of this we are bound to say that Hamainda v The People (2), a High
Court decision, was wrongly decided."

In our view the learned trial judge could have convicted on an uncorroborated confession
but it was entirely within his discretion to hold that he preferred not to do so on this
particular confession unless there was additional evidence. The learned judge then went on
to find such additional evidence.

The learned trial judge did not however consider the whole of the circumstances of this case
when reconsidering the admissibility of the statement, nor did he consider the weight to be
attached to the statement in the light of the whole of such circumstances.

The appellant was apprehended on the 13th April 1977, and on the 14th April, having made
his statement, he was arrested on a charge of murdering Mr Naik, the deceased. On the
29th December 1977, that charge was withdrawn and the appellant was re-arrested on
charge of having, together with two others, namely Saili Mvula and Henex Phiri, murdered
the deceased. At the beginning of the trial all three accused were called upon to plead and
they pleaded not guilty. After the plea was taken the State Advocate indicated to the court
that he was offering no evidence against the other two accused and they were duly
acquitted. It is apparent therefore that until the date of the trial, which was the 11th August
1978, the police were of the opinion that the appellant's confession statement in which he
said that he was alone when he struck the deceased, was untrue. Counsel for the defence
attempted to cross-examine PW4, the investigating officer about the case against the two
other accused; but, although she was not specifically prevented from continuing with her
cross-examination, it is evident from the record that she was discouraged from inquiring
into the part alleged to have been played by the other two accused. Eventually, after the
learned judge had said that he was reluctant to make the cross-examination difficult, but
that he must proceed on the basis that questions being asked were relevant and went
towards resolving issues, as fast as possible in the interests of justice, counsel for the
defence said that she did not wish to pursue it further. It is unfortunate that this line of
cross-examination was not proceeded with because it was of great relevance for the court to
ascertain how it was possible for the prosecution to rely on a confession statement
implicating the appellant alone when in fact at one stage they had considered that there
was sufficient evidence to proceed against three accused jointly. If the statement was
untrue or suspected of being untrue it should have put the trial court on inquiry as to
whether the appellant did in fact make such a statement or whether the words were put into
his mouth by the interrogating officers as he alleged. In considering whether or not the
interrogating officers there capable of putting words into persons' mouths the trial court
should have taken into account the evidence of J .D. Desai, PW2. This witness said that he
made a statement to the police and that he read it himself and signed it after pointing out
mistakes to the police who said that he could tell a later court that what he had said was a
mistake. The statement which was put to him read as follows:

"I am staying at Obote Plot. I have been staying with the late Mr Naik who was my
uncle. . . on this day, again on this date of the post-mortem I went to the mortuary and I
saw a grey tie which was tied on his neck which I identified to be one of the ties he used to
wear at the time he was alive."

In cross-examination he said the first statement about staying with and being related to the
deceased was a mistake and, as we have said, the police told him that he could remedy that
mistake when he appeared in court and, in respect of the evidence relating to the
post-mortem and the tie, he said that the CID told him "we have taken this tie from his
neck; can you identify whether he was using it on the neck as his neck tie". He specifically
said that he had not been at the post-mortem and had not seen the tie round the
deceased's neck although he recognised the tie as belonging to the deceased. No doubt the
learned State Advocate was confused because he had before him a statement by this
witness which was blatantly false although the falsity, fortunately, did not affect the issue
before the court. It is possible that the learned State Advocate thought that this witness,
J.D. Desai, was the V.L. Desai referred to in the post-mortem report and in the evidence of
PW1 as having been the person who identified the body to him. Be that as it may, we view
with alarm a situation where a police officer, taking a statement from a witness, writes out a
statement which is completely contrary to the evidence of the witness, and that such
witness should sign such statement merely on the word of policeman that he could point
out any mistakes later when he is in court. Had the learned trial judge in considering the
appellant's statement in his judgment considered the whole of the circumstances of the
case, that is to say, that, to support a charge against the original three accused, the
statement by the appellant that he was alone must be untrue, it is possible that he might
have revised his decision to admit the document; but in any event he failed to consider
what weight should be attached to the statement having regard to the circumstances to
which we have referred. We are unable to say what course the learned trial judge would
have taken, and in the circumstances, in favour of the appellant we consider that it was
unsafe to rely on the confession.
As to the remainder of the evidence, PW4 said that when he searched the house of the
deceased he found a piece of paper on which was written the name and address of the
appellant. The piece of paper was not produced and therefore the evidence as to its
contents was not the best evidence and should not have been accepted by the trial court.
Either the document should have been produced or acceptable evidence should have been
given as to why its production was impossible. No objection was taken by defence counsel
at the time but lack of such objection does not render admissible that which is inadmissible.

The learned trial judge apparently did not entirely rely on this evidence because, after the
appellant had made an unsworn statement saying that he did not know the case and did not
know when the offence occurred, the learned trial judge asked him if he knew the deceased
and, when he received a reply that the appellant had on one occasion done piece-work for
him, the learned trial judge went on to ask him when he had done such work, and received
a reply that it was on the 8th March to the 16th March, 1977.

When an accused person elects to make an unsworn statement he is not subject to

cross-examination by the prosecution and neither is he subject to questioning by the court;
except of course to elucidate unclear details or to clarify ambiguities. The answers to the
questions asked by the court were therefore inadmissible. In his judgment the learned trial
judge relied on the evidence that the appellant had been a domestic servant of the
deceased in order to support the conviction; this was a misdirection.

The court declined to apply the proviso and allowed the appeal.
Appeal allowed

KALENGA M'POYOU AND KANE MOUNOUROU (1979) Z.R. 211 (H.C.)

HIGH COURT
MOODLEY, J.
6TH APRIL, 1979
1979/HN/14

Flynote

Civil procedure - Notice of motion - Habeas corpus ad subjiciendum - Supporting

Affidavits - No Application - Joint notice of motion - Whether possible - Swearing of Affidavit
for client - When possible.

Headnote

The advocates for the two applicants had filed a notice of motion for writs of habeas corpus
ad subjiciendum, together with two supporting affidavits. The first applicant had sworn an
affidavit, whereas the affidavit of the second applicant was sworn by an advocate on his
behalf. No application for the writ, however, was made.

Held:
(i) Before a notice of motion for a writ of habeas corpus ad subjiciendum could
issue, there must be an application for such a writ.
 (ii) An application for such a writ may not be joint.

(iii) An affidavit can be sworn on behalf of an applicant only where it is quite

impossible for him to do it himself.

(iv) It is the duty of counsel to ensure that all documents drafted for purposes of
court proceedings are in meticulous order.

Legislation referred to:

R.S.C., O. 54, rr. 1, 2.

High Court Rules, Cap. 50, O. 5, rr. 11 to 18.

Judgment

MOODLEY, J.: The advocates for the two applicants had filed a notice of motion for writs of
habeas corpus ad subjiciendum together with two supporting affidavits. The first applicant
Kalenga M'poyou had sworn an affidavit, whereas the affidavit on behalf of the second
applicant Kane Mounourou was sworn by an advocate on behalf of this applicant.

I have perused the papers in connection with this application on the file and I regret to say
that I have been left greatly disturbed both by the contents of the documents and the
manner in which the advocate concerned had instituted these proceedings. Before a notice
of motion for a writ of habeas corpus ad subjiciendum could issue, there must be an
application for such a writ. No such application had been made in this case.

R.S.C. O. 54, R. 1, provides, inter alia, that an application for a that of habeas corpus ad
subjiciendum should be made to a single judge in court, except that in vacation or at any
time when no judge is sitting in court it may be made to a judge otherwise than in open
court. RSC O. 54, r. 1, further provides in para. 2 for an application for the writ to be made
ex parte and, subject to para. 3, must be supported by an affidavit by the person restrained
showing that it was made at his instance and setting out the nature of the restraint.
Paragraph 3 of this rule provides that where a person restrained is unable for any reason to
make the affidavit required by para. 2 the affidavit may be made by some other person on
his behalf and the affidavit must state that the person restrained was unable to make the
affidavit himself and the reasons for his inability to do so should also be set out in the
affidavit. In terms of RSC Order 54/1/2 the procedure employed is for the application to be
made ex parte to a judge in the first instance and if upon hearing the application the court
gives leave, the application s usually adjourned for the notice to be served on such persons
as the court directs; and upon the adjourned hearing, if the application succeeds writ is
ordered to issue.

R S C Order 54, r. 2, of the Supreme Court provides as follows:

"2 (1) The Court or Judge to whom an application under rule 1 is made ex parte may
make an order forthwith for the writ to issue, or may:

(a) Where the application is made to a judge otherwise than in Court, direct that
an originating summons for the writ be issued, or that an application therefore be made by
originating motion to a Divisional Court or to a Judge in Court;
(b) Where the application is made to a Judge in Court, adjourn the application so
that notice thereof may be given, or direct that an application be made by originating
motion to a Divisional Court;
(c) Where the application is made to a Divisional Court, adjourn the application
so that notice thereof may be given.

(2) The summons or notice of the motion must be served on the person against
whom the issue of the writ is sought and on such other persons as the Court or Judge may
direct, and, unless the Court or Judge otherwise directs, there must be at least 8 clear days
between the service of the summons or notice and the day named therein for the hear of
the application."

The next point which emerges from the documents is that the notice of motion for the writs
is in respect of a joint application on behalf of two applicants. In my view joinder of
applications for a writ of habeas corpus ad subjiciendum is inappropriate since the
application for a writ on behalf of each applicant is a separate and distinct cause of action,
even if there are factors which are common to both applications. The word "corpus" means
"a body" and not "bodies". Quite clearly therefore the application as filed on behalf of these
two applicants is misconceived.

I now come to the affidavits filed in support of this application. As I have said the applicant
Kalenga M'poyou had sworn an affidavit in support of his application. On the other hand the
advocate for the applicant Kane Mounourou has sworn an affidavit on behalf of the second
applicant. It would appear that the advocate concerned was unable to obtain an affidavit
personally from Kane Mounourou because this applicant had been removed to Lusaka
Remand Prison. Paragraph 3 of R.S.C. Order 54, r. 1, provides that an affidavit on behalf of
an applicant could only be made where the restrained party is unable to make the affidavit
himself. In my view the reason provided by the advocate for his failure to take an affidavit
from the second applicant, namely, that the second applicant had been removed to Lusaka
Remand Prison, is not a sufficient and good reason to justify the advocate making an
affidavit on behalf of the applicant. It was open for the advocate to travel to Lusaka to
obtain an affidavit personally from this applicant. Alternatively, the advocates could have
engaged the services of an agent in Lusaka who could have obtained an affidavit from the
second applicant. The only occasion where an affidavit can be made on behalf of an
applicant is where the person restrained is unable to make the affidavit himself. In this case
the applicant who was in Lusaka Remand Prison was able to make the affidavit. There is no
indication that he was suffering from any physical disability or was being held
incommunicado, so that it was impossible for the advocate to obtain an affidavit in those
circumstances.

I should state further that it is most inadvisable for an advocate to swear an affidavit
deposing as to facts on behalf of a client in contentious matters, especially where there is a
risk that the facts deposed to by the advocate could be disputed by the other side. In such
circumstances the advocate concerned would be placed in a most embarrassing situation.
The attention of the advocate is particularly drawn to the contents of rr. 11 to 18 of O. 5 of
the High Court Rules, Cap.50.

Finally I come to the affidavits themselves. I find that there are numerous spelling errors,
some omissions and alterations in the two supporting affidavits. The omissions and errors
have not been corrected and the alterations have not been initialled by the persons
swearing the affidavits. Both these affidavits in their present state are disgraceful and
appear to indicate a considerable degree of carelessness on the part of the advocate who
drew up these affidavits. Judges have neither the time or the disposition to act as
schoolmasters to correct each and every word in documents drafted by counsel. It is the
duty of counsel to ensure that their paperwork is in meticulous order before filing and that
all documents drafted for purposes of court proceedings conform with the legal
requirements.

For the reasons given above I am not prepared to entertain the notice of motion for writs of
habeas corpus ad subjiciendum in its present form and accordingly the notice and the
supporting documents are struck out of the file.

Notice of motion struck out

PAUL JOHN FIRMINO LUSAKA v JOHN CHEELO (1979) Z.R. 214 (H.C.)

HIGH COURT
CULLINAN, J.
30TH MARCH, 1979
1978/HP. No. EP.5

Flynote

Election petition - Report - Conviction of corrupt practice - Naming respondent - Whether

discretionary - Discretion dependent upon degree of culpability.
Election petition - Interpretation of s. 28 (6) of Electoral Act - To whom applicable - Any
person involved - Penal effect - Illegal practice distinguished from corrupt practice.

Headnote

The respondent was convicted of having committed the corrupt practice of bribery in
connection with the final election for the Kafue Constituency; consequently the court was
faced with the question of making and delivering a report under the provisions of s. 28 (6)
and (7) of the Electoral Act.

Held:
(i) The provisions of s. 28 (6) (b) of the Electoral Act, Cap. 19, are discretionary,
and in proper case the High Court, in making its report, may decline to
state the name of a person found to have committed a corrupt or illegal
practice.

(ii) Conviction of an illegal practice as distinct from that of a corrupt practice is

not penal, and does not have the effect of unseating a member of Parliament
or disqualifying him from nomination for a election.

(iii) The provisions of s. 28 (6) apply to any person involved, and emphasis is
placed not so much on the liability of the person involved, but the degree of
culpability.

Cases referred to:

(1) Langton v R. (1961) R. & N. 16.

(2) Ipswich Election Petition (1886) 23 Q.B.D. 30.
(3) R. v Mansel Jones (1889) 23 Q.B.D. 29.
(4) Chester City Case (1880) 44 L.T. 285.

Legislation referred to:

Electrical Act, Cap. 19, ss. 8 (3), 17 (2), 27, 28 (6), (7).
Penal Code, Cap. 146, ss. 25 (2), 41.
Constitution of Zambia, Cap. 1, Art. 71 (2).
Representation of the People Act, 1949 (England), ss. 108, 140.
Corrupt and Illegal Practices Prevention Act, 1883, s. 38 (1).

For the petitioner: N.R. Fernando, Gib. Chigaga & Co.

For the respondent: M.F. Sikatana, Veritas Chambers.

Judgment

CULLINAN, J.: On 7th March, 1979, the court delivered its determination in this matter,
pursuant to the provisions of s. 28 of the Electoral Act, Cap. 19. The court found that the
respondent had committed the corrupt practice of bribery in connection with the final
election for the Kafue Constituency held on 12th December, 1978, in that he gave the sum
of K4 in order to induce the recipient to endeavour to procure the return of the respondent.
Consequent upon the court's determination the question of making and delivering a report
under the provisions of s. 28 (6) and (7) of the Act arises. Those provisions read as follows:

"28. (6) Where it appears to the High Court upon the trial of an election petition that
any corrupt practice or illegal practice has been committed by any person in connection with
the election to which the election petition relates, the High Court shall, at the conclusion of
the proceedings, prepare a report stating -

(a) the evidence given in the proceedings in respect of such corrupt practice or
illegal practice;
(b) the names and particulars of any person by whom such corrupt practice or
illegal practice was, in the option, of the High Court, committed;
Provided that the High Court shall not state the name of any person under
this paragraph unless such person has been given an opportunity of appearing before the
High Court and of showing cause why his name should not be so stated.

(7) The Registrar shall deliver a copy of every report prepared by the High Court
under subsection (6) to -

(a) the Commission; and

(b) the Director of Public Prosecutions."

[The comma after the word 'opinion' seems unnecessary.]

The question arises as to what is the interpretation to be placed on the above proviso in s.
28 (6). Does it mean that the court shall not arrive at its conclusion that a person
committed a corrupt or illegal practice without first giving that person an opportunity of
being heard; or does it mean that the court, though satisfied that person committed a
corrupt or illegal practice may nonetheless, in the exercise of its discretion, for good cause
shown, decline to state the name of that person in a report?
Mr Fernando initially submitted that the proviso in s. 28 (6) applies only to para. (b); that
there is no discretion under para. (a) and that as the court must comply therewith and state
the relevant evidence, then in doing so it must inevitably state the name of the person
involved therein. I agree that the proviso applies only to para. (b): indeed, referring as it
does to "this paragraph", it can only be construed as forming part of para. (b). The
requirement under para. (a) however is merely to state the evidence as such. The recitation
of the evidence does not in itself constitute a report in respect of a particular person: it is
only where the evidence having been recited, it is then stated under para. (b) who "in the
opinion of the High Court" committed a corrupt or illegal practice, rendering the person's
names and particulars, that such person can then be regarded as having been reported. Mr
Fernando agreed with this interpretation and very properly made the submission, in the
interests of the respondent, that there appears to be a discretion under para. (b). Mr
Sikatana makes the same submission. My first impression of the above provisions is that
they are mandatory, namely that the court must state the name of the person involved
where "it appears" to the court that he has commited a corrupt or illegal practice. There are
however some difficulties to be encountered in this construction.

It may be suggested that the words "it appears", in their present context, are to be
construed as meaning "it seems"; that is to say, that where it merely seems to the court
that a corrupt or illegal practice has been committed the court must provide the person
involved with an opportunity of being heard and thereafter reaches its conclusion or
formulates its "opinion" the matter. What then if the person declines to appear before the
court? If the provisions of s. 28 (6) are mandatory then the court is obliged in such a case
to state the person's name in a report. The words "it appears" could hardly then be
construed as meaning "it seems". Those words may be interpreted differently according to
their context. For example, in the case of Langton v R. (1) at p. 20 Briggs, F.J., was of
the view that in the context of criminal provision identical to s. 25 (2) of our Penal Code
the same words connote proof beyond reasonable doubt. The effect of the High Court's
report under s. 28 (6) is that the person reported is disenfranchised under section 6, and
disqualified for nomination for election as a member of the National Assembly under s. 8
(3) of the Act for a period of five years; if he is already member of the National Assembly
he is unseated under Art. 71 (2) (e) of the Constitution-if the corrupt or illegal practice was
committed in connection with his own election, the effect of course, would be the same
under s. 17 (2) (c) of the Act. The report of the court therefore under s. 28 (6) has grave
consequences and can be said to be penal in effect. Further, it may expose the person
reported to criminal sanctions if not furnished with a certificate of indemnity under s. 27 and
if the Director of Public Prosecutions in his discretion decides to initiate prosecution. I do
not see therefore that the High Court could possibly report person under s. 28 (6) unless
the commission by him of a corrupt or illegal practice had been proved before the court, and
the words "it appears" and "opinion" must in view be construed accordingly. While the
parliamentary draftsman in the inclusion of the words "in the opinion of the High Court",
may well have provided for a formula to be adopted by the court in making its report,
bearing in mind that such report does not amount to, while it may well be the precursor to a
conviction, nonetheless I consider that the word "option" must be construed in the same
way as the words "it appears".

It can be argued that if the words "it appears" are to be so construed that the court
nonetheless formulates such conclusion only after hearing the person involved. That person
however, as I have already said, may not avail himself of the opportunity of being heard.
Further, the making of a report is a step subsequent to the trial of an election petition and
the determination of the issues therein. The provisions of s. 28 (6) however indicate that
the court arrives at its conclusion as to the commission of a corrupt or illegal practice "upon
the trial" of the petition and not upon making the report. This is only to be expected. It
would be absurd to suggest that the court would deliver its determination under s. 28 (1)
declaring, say, the election void under s. 17 (2) (a) or (c) by reason inter alia of a corrupt or
illegal practice committed by a particular person without being satisfied thereof. There
might conceivably be circumstances where the court would reach such a conclusion without
exercising its powers under s. 27 of the Act and without calling any person incriminated by
evidence of a corrupt or illegal practice. If the court did reach such conclusion at the trial in
the absence of such person then it seems to me that the evidence against him would have
to be little short of overwhelming and I do not see that evidence subsequently rendered
upon consideration of a report could alter the question of liability.

It might be said that the proviso applies only to those persons who did not appear before
the court at the trial. I do not see that the proviso could be so interpreted however: even if
a person appeared before or gave evidence before the court at the trial, it could not be said
that his attention had thereby been directed to the aspect of a report under s. 28 (6) much
less the question of showing cause why his name should not be stated therein. As I see it,
the proviso must apply to any person involved whether or not he has appeared before the
court at the trial. It must then include the parties themselves, who most likely have given
evidence at the trial and the other witnesses involved: indeed it must include witnesses who
have at the trial truthfully admitted to having committed a corrupt or illegal practice, to the
extent that they have been furnished with a certificate of indemnity. I do not see how the
rehearsal of their evidence could affect the situation.

The provisions of s. 28 (6) are apparently based on those of s. 140 of the Representation of
the People Act, 1949, of the United Kingdom, which have their origin in nineteenth century
legislation. Those provisions in part read:

"140. (1) The report of the election court under section one hundred and twenty-four
or one hundred and twenty-five of this Act shall state the names of all persons (if any) who
have been proved at the trial to have been guilty of any corrupt or illegal practice and
whether they have been furnished with certificates of indemnity, but, in the case of
someone who is not a party to the petition nor a candidate on behalf of whom the seat . . .
is claimed by the petition, the election court shall first cause notice to be given to him, and
if he appears in pursuance of the notice, shall give him an opportunity of being heard by
himself and of calling evidence in his defence to show cause why he should not be so
reported."

It will be seen from the above provisions that the requirement to provide a person with an
opportunity of being heard does not apply to "a party to the petition nor a candidate on
behalf of whom the seat . . . is claimed by the petition". It could be said that such exception
emphasises the mandatory nature of the above provisions, that is, that the provisions
envisage that the evidence of the parties or the particular candidate may well be heard or at
least that they will be provided with an opportunity of being heard at the trial itself, and
that there will therefore be no need to further hear them, or to provide any such further
opportunity. But it may well be, on a petition filed by a voter (see s. 108 (1) (a) of the 1949
Act), that the candidate on behalf of whom the seat is claimed might not have attended
court at the hearing of the petition. In any event, the requirement to provide an opportunity
to be heard to witnesses, who have already been heard, still exists. In this respect Cave, J.,
is reported as having in effect observed in the case of the Ipswich Election Petition (2) cited
by counsel in the trial of R. v Mansel Jones (3) at p. 31, that:
 ". . . the intention was to allow a man, who had been heard as a witness - his
interest then being subordinated to that of the party who called him or against whom he
was called - to appear in a different position so as to take care of his own interests."

It seems to me that the learned judge was there doing his best to interpret a difficult
provision (s. 38 (1) of the Corrupt and Illegal Practices Prevention Act, 1883) and was
experiencing difficulties similar to that which this court now faces: once an election court
had certified its determination under the provisions applicable at that time, and found a
corrupt or illegal practice proved against a witness, I cannot see how that witness could
have hoped to improve his situation, whether or not the court's previous finding had been
based on his truthful admission, reflected perhaps in the issue of a certificate of indemnity
(see s. 33 of the Parliamentary Elections Act, 1868) or on other evidence in the face of the
witness' denial.

In the Chester City case (4) at p. 287 an election court, for non mitigatory reasons which
need not here concern us, declined to report the names of persons proved to have been
guilty of corrupt practices, unless the House required them to be reported. The learned
authors of Halsbury's Laws of England, 4 Ed., Vol. 15, at para. 945, comment that "the
statutory provision seems to be peremptory as regards the election court reporting such
names". I agree that the 1949 provisions certainly seem at first glance to be peremptory,
but examination thereof on the lines indicated may reveal otherwise.

It seems to me that the exclusion of the parties and a candidate on behalf of whom the seat
is claimed from the requirement in the 1949 provisions to hear the person involved,
emphasises not the mandatory but the discretionary nature of those provisions. In my view
emphasis is placed not so much on the liability of the person involved but the degree of
culpability. The legislature obviously regards the commission of a corrupt or illegal practice
by a candidate in a very serious light. No doubt a serious view would also be taken of the
commission of such practice by a voter who in the face of such practice nonetheless
presented an election petition. The commission of a corrupt or illegal practice by another,
other than an election or polling agent, would not necessarily have the same effect, that of
avoiding the election, and even in the case of an election agent or a polling agent his
culpability in the matter must be less than that of his principal. It seems to me therefore
that the 1949 provisions place emphasis not on the mandatory aspect of the report, or on
the aspect that those excepted from the requirement of being heard may have already been
heard at the trial, but on the higher degree of culpability of those so excepted. This
suggests to me that such provisions contain a discretion as to whether or not to report
those who, if they so wish, must be heard even for the second time by the court.

Although there is no exception contained in the provisions of s. 28 (6) as to who must be

given the opportunity of being heard, those provisions in my view similarly contain a
discretion. The only inference which I can safely draw from the non repetition of such
exception is that our legislature wish to extend the discretion to "any person". It is
significant that the proviso attaches only to para. (b) of s. 28 (6). The court is obliged to
state the relevant evidence for the information it seems of the Director of Public
Prosecutions, who will, the exercise of his discretion, decide whether or not to institute a
prosecution on the basis thereof. Thereafter it can be said that the court may exercise its
discretion under para. (b) and decide whether or not, for the information of the Electoral
Commission, to state the names and particulars of the person involved. It is significant that
the words "in his defence", contained in the 1949 provisions, have not been repeated.
Under our provisions the person is given an opportunity of "showing cause why his name
should not be so stated". In my view such "cause" can only be mitigatory in nature.
Although a person might be strictly guilty of a corrupt or illegal practice such practice might
be of "a trivial, unimportant and limited character", a consideration which inter alia, under s.
138 of the 1949 Act, would favourably affect the commission of a corrupt or illegal practice
by a polling agent, and thus the liability of the candidate.

It will be seen that a conviction in respect of an illegal practice, as distinct from a corrupt
practice, does not at least have the effect of unseating a member of the National Assembly
or of disqualifying him from nomination for election thereto. A report by the High Court in
respect of an illegal practice does have this effect however. Further, although a conviction
for an illegal practice involves the person convicted in electoral sanctions under s. 6 of the
Act, the trial magistrate nonetheless retains the discretion, in a proper case, where the
conditions of s. 41 of the Penal Code are met, to discharge the accused person, an order
which would in effect avoid further sanctions. The same consideration applies to a conviction
in respect of a corrupt practice. If the provisions of s. 28 (6) are mandatory it would mean
therefore that the discretion vested in the Subordinate Court is not to be found in the High
Court, I find it difficult to accept that this could have been the legislature's intention.

I cannot but see that the reappearance of a party or witness before the court in the hope of
affecting his liability, is an exercise in futility. When invited to "show cause", his address to
the Court or any evidence adduced will invariably be mitigatory in nature: I find it difficult to
conceive what other course is open to him. The provisions of s. 28 (6) must in the least be
said to give rise to doubt the matter of their interpretation. They are penal in effect and in
the absence of express words I consider that the court should be slow to construe them
against the Constitutional rights of franchise and election of the individual. For that reason I
hold that the provisions of s. 28 (6) (b) are discretionary and in a proper case the High
Court in making its report only decline to state the name of person found to have
committed a corrupt or illegal practice.

To my knowledge this is the first case in the history of the Republic of a member of the
National Assembly unseated because of the commission by him of a corrupt or illegal
practice. The corrupt practice in question, involving the small sum of K4, was I consider of a
trivial, limited and unimportant character. The recipient of the K4 was in no way induced to
act thereon and even acted against the respondent's interests thereafter. There is no
evidence that even one vote was corrupted thereby. In all the circumstances I consider this
a proper case for the exercise of the court's discretion in favour of the respondent.

Judgment for the respondent

BANK OF ZAMBIA v REGISTRAR OF LANDS AND DEEDS AND THE STAMP DUTY ACT
(Cap 664 of the Laws) (1979) Z.R. 220 (H.C.)
HIGH COURT
CHAILA, J.
26TH SEPTEMBER, 1979

Flynote

Stamp duty Ad valorem - Assignment of life insurance Policy to secure loan - Whether ad
valorem chargeable.
Stamp duly - Determination of by Stamp Duty Commissioner - Procedure for bringing
matter before court.
Headnote

The insured, Leonard Mutema, entered into an agreement to assign his life insurance policy
to the bank as security for the repayment of a loan. On applying for registration, the
Registrar of Lands and Deeds demanded that ad valorem duty be paid. Counsel for the bank
contended that the assignment was not a mortgage and therefore, no duty should be
charged. The matter was referred to court by way of originating notice of motion.

Held:
(i) A life insurance policy is a property capable of being mortgaged or made
security for repayment of money. Ad valorem duty is therefore chargeable
under the provisions of sch. I, Head 8, item (i) of the Stamp Duty Act.

(ii) The court has jurisdiction to hear the application by way of an originating
notice of motion.

Legislation referred to:

Stamp Duty Act, Cap. 664, sch. I, Head 8, item (i).

Cases referred to:

(1) Caldwell v Dawson (1850) E.R. Ex 156.

(2) Re Water House's Policy, [1937] 2 All E.R. 91.

For the Bank of Zambia: E.J. Shamwana, Shamwana and Company.

Mr Chamutangi, Registrar of Lands and Deeds.

Judgment

CHAILA, J.: The question in this matter is, whether an assignment of life policy dated 7th
September, 1978, and made between Leonard Mutema of Lusaka and the Bank of Zambia
attracts ad valorem duty.

Assignment of life policy is drawn in the following terms:

"This Assignment of Life Policy is made the 7th day of September, One thousand
nine hundred and seventy-eight BETWEEN Leonard Mutema of Lusaka Province of the
Republic of Zambia (hereinafter called 'the Borrower') of the one part and Bank of Zambia
established by statute under the Bank of Zambia Act and having its head office in Lusaka
aforesaid (hereinafter called 'the Bank') of the other part Whereas the Borrower is entitled
to the policy of insurance (hereinafter called 'the policy') described in the Schedule hereto
and whereas the Bank has agreed to advance to the Borrower on the security of the policy
hereinafter described the sum of Five Thousand Kwacha (K5,000.00) together with
interest as hereinafter mentioned.
NOW THIS DEED WITNESSETH as follows:
1. In pursuance of the said agreement and in consideration of the premises the
Borrower as Beneficial Owner Hereby Assigns unto the Bank All That Policy particulars
whereof are described in the Schedule hereto and all moneys including Bonuses already
accruing or hereafter to accrue which shall become payable thereunder and the Benefit of all
powers and remedies of enforcing the same TO HOLD the same unto the Bank SUBJECT
only to the proviso for redemption hereinafter contained.
2. Provided that if the Borrower shall repay to the Bank the said sum of Five
Thousand Kwacha (K5,000.00) with interest thereon at the rates on the dates and in the
manner agreed upon between the Bank and the Borrower the Bank will at the request and
cost of the Borrower reassign the Policy to the Borrower or as he may direct.
3. The Borrower hereby covenants with the Bank as follows:

(1) That the Policy is valid and that nothing shall be done permitted or
suffered to be done whereby the Bank or any person claiming title through it may be
prevented from receiving the moneys payable thereunder or any part thereof
(2) That if the Policy shall become void or voidable the Borrower will
forthwith at his own cost do all such things as may be necessary for the keeping of the
same afoot
(3) That the Borrower will during the continuance of this security
punctually pay all premiums for keeping on foot the Policy or any such new or substitute
policy
(4) That if the Borrower shall at any time make default in payment of any
of the said premiums it shall be lawful for the Bank or its successors in title or assigns to
pay the same
(5) That any sum so paid or expended by the Bank or by the persons
deriving title through it in effecting any new policy in place of any policy which may have
become void and any sums paid by any such person or by the Bank in respect of
premiums shall be added to the principal moneys for the time being owing on this security
and bear interest accordingly at the rate aforesaid from the time or respective times of
payment and be charged upon the policy and upon every new policy effected under this
deed in the same manner as if they had originally formed part of the said principal sum to
Five thousand Kwacha (5,000.00)

IN WITNESS whereof the Borrower has hereunto set his hand and seal the day and
year first before written THE SCHEDULE HEREINBEFORE REFERRED TO
Policy Number, Z19567
Name of Assured, Leonard Mutema
Type of Policy, Endowment Assurance
Date of Policy, Undated
Sum Assured, K5,000.00
Date of Maturity, 1st January, 1998 or on the previous death,
of the Life Assured
SIGNED SEALED AND DELIVERED