Headnote
The appellant was the secretary of the Chipata Rural Council, and a specified officer as defined in the Local Government Officers Act. On the 28th August, 1972, the appellant was convicted on two counts of forgery and uttering, contrary to ss. 347 and 352 of the Penal Code. He was sentenced to six months' imprisonment with hard labour on each count and the whole of those sentences was suspended. Prior to this he had been suspended from duty by the respondent.
On the 1st September, 1972, the Council met for the purpose of determining whether or not the appellant should be dismissed. The then chairman of the Council gave his view of the appellant's behaviour, 35 which was clearly very favourable to the appellant. A vote was taken and, by 34 votes to 1, the Council resolved to remove the appellant's suspension from duty and to reinstate him in the Council's service. Subsequently, there was correspondence with the Minister and on the 3rd May, 1973, the Council reaffirmed its resolution that the appellant 40 be reinstated. There was further correspondence with the Minister and on the 5th October, the Council, by resolution, reversed its previous resolutions and dismissed the appellant from his employment with effect from the date of his conviction.
The appellant brought this matter before the High Court by means of an originating summons seeking a declaration that he was still employed by the Council. The High Court refused to make the declaration sought by the appellant.
Held:
(i) There is no case in the High Court where there is a choice between commencing an action by a writ of summons or by an originating summons. The procedure by way of an originating summons only applies to those matters referred to in Order 6, rule 2, of the 10High Court Rules and to those matters which may be disposed of in chambers.
(ii) Where any matter is brought to the High Court by means of an originating summons when it should have been commenced by writ, the court has no jurisdiction to make any declarations.
(iii) The increasing practice amongst lawyers conducting cases of introducing evidence by filing affidavits containing hearsay evidence is not merely ineffective but highly undesirable, particularly where the matters are contentious.
