The plaintiff claimed the sum of K1,953.05 being a sum levied under a writ of fieri - facias on the grounds that the second defendant at all material times was a servant and/or agent of the first defendant and had misappropriated the said sum whilst executing his duties and that, in those circumstances, the first defendant was vicariously liable for the conduct of the second defendant. The second defendant was in fact a court bailiff and as a result of the misappropriation was convicted on two counts of theft by public servant. The first defendant denied that the second defendant was a servant or an agent of the Government of the Republic of Zambia. Thus, the question for determination was whether the court bailiff was a servant or agent of the Government for whose acts, omissions or defaults the Government of Zambia can be made liable to a third party.
Held:
(i) That under s. 4 (1) of the State Proceedings Act, Cap. 92, the State can only be liable in tort for the act or omission of a servant or agent after such act or omission has given rise to a cause of action in tort against that servant or agent or his estate.
(ii) That on the question whether a court bailiff was a public servant, one must consider whether the State retained complete control over the court bailiff and had some interest in the execution of his duties and, secondly, whether the State was responsible for the payment of his remuneration; and that the evidence disclosed that the court bailiff was not a public officer since he was not paid out of public funds and that, in terms of s. 14 (a) of the Sheriff's Act, control of a court bailiff was vested in the party which demands the execution of the writ or process and the said party could only make such a demand if he had an interest in the purpose for the execution.
(iii) That although s. 4 of the Penal Code, Cap. 146, defines, inter alia, "Person employed in the Public Service" as any person employed to execute any process of a court, the court would be slow to interpret s. 171 (6) of the Criminal Procedure Code, Cap. 160, as meaning to include a court bailiff, because this would conflict with the provisions of s. 138 of the Constitution, which excludes a court bailiff from being regarded as a public officer, and it followed that the court bailiff was not a servant
or agent of the Government of the Republic of Zambia for whose acts, omissions or defaults the Government would be held liable and, accordingly, judgment would be entered against the plaintiff with costs awarded to the defendants.
