Siwingwa N.O. v Phiri (1977/HK/267) [1979] ZMHC 20 (19 April 1979);

Group

Headnote and flynote

Flynote:

Full judgment

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
p146

motor vehicle Registration No. ADA 1210 14th Street, Ndola/Luanshya Road, at Luanshya on 3rd February 1977. When the matter came up for trial on the 9th April 1979, it transpired that the plaintiff would be relying on the fact that the defendant's servant who is alleged to have been driving the motor vehicle in question, was convited of careless driving by the Subordinate Court, Luanshya, in relation to the fatal traffic accident which occurred at Luanshya on the 3rd February 1977. After consultation with the advocates for the plaintiff and the defendant, it was decided that the court should determine, as a preliminary issue, whether the fact that the defendant's servant hand been convicted of careless driving in relation to the fatal traffic accident, which is now the subject of these civil proceedings, was admissible in evidence.
Mr Haselden for the defendant submits that it was not open for the plaintiffs to adduce in these proceedings any evidence concerning the conviction of the defendant's servant. He relies on the case of Hollington v Hewthorn and Co., Ltd (1) where it wads held that both on principle and authority, that, the evidence of a conviction in similar circumstances was inadmissible. In that case there was a collision between two motor vehicles on a highway. The plaintiff alleged negligence on the part of the defendant driver. In the case of civil proceedings, the plaintiff sought to give evidence of a conviction of the defendant driver of careless driving, at the time and place of the collision. Lord Justice Goddard delivering the judgment of the Court stated at p. 601:

The contention that a conviction or other judgment ought to be admitted as prima facie evidence is usually supported on the ground that the facts have been investigated and the result of the previous investigation is, therefore, at least some evidence of the facts that thereby have been established. To take the present case, it could be said that the conviction shows that the Magistrates were satisfied on the facts before them that the defendant was guilty of negligent driving. If that be so, it ought to be open to a defendant who had been acquitted to prove it, as showing that the criminal court was not satisfied of his guilt, although the discussion by text-book writers and in the cases all turn on the admissibility of convictions and not of acquittals. If a conviction can be admitted, not as an estoppel, but as prima facie evidence, so ought an acquittal, and this only goes to show that the Court trying the civil action can get no real guidance from the former proceedings without retrying the criminal case. Without dealing with every case and text-book that were cited in the argument, we are of the opinion that both on principle and authority, the conviction was rightly rejected.
Mr Haselden further submitted that in so far as English Law is concerned, the decision in Hollington's case (supra) was reversed by the Civil Evidence Act of 1968. Section 11 (1) of that Act provides:

In any civil proceedings the fact that a person has been convicted of an offence by or before any Court in the United Kingdom or by
p147

a court martial there or elsewhere shall . . . be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence . . . but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
Section 11 (2) provides:

In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court martial there or elsewhere (a) he shall be taken to have committed that offence unless the contrary is proved; and (b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts upon which the conviction was based, the contents of any document which is admissible as evidence of the conviction and the contents of the information, complaint, indictment or charge sheet on which the person in question was convicted shall be admissible in evidence for that purpose.
It would appear therefore that on the facts such as those of Hollington's case (supra), once the conviction had been proved, and the negligence in respect of which the driver was convicted, identified, the courts in England in terms of the 1968 Act will now be bound to find in favour of the plaintiff unless the driver or his employer disproves negligence on the balance of probabilities.
Mr Haselden argues that the courts in Zambia should not give effect to s. 11 of the Civil Evidence Act of 1968 of the United Kingdom. He contends that the ratio decidendi of Hollington's case (supra) is still good law in Zambia and that in those circumstances the courts should not admit in civil proceedings any evidence concerning the conviction of the defendant's driver. He submits that even if the provisions of the Civil Evidence Act applied in Zambia, the plaintiff had failed to comply with the provisions of R.S.C.O. 38, r. 20, concerning hearsay evidence, especially as the Zambian Evidence Act, Cap. 170, does not authorise the admissibility of convictions as provided for by the United Kingdom Civil Evidence Act of 1968. Thus, it is Mr Haselden's contention that in this regard the courts in Zambia should abide by the common law which existed pre-1968 in England and, accordingly, the decision in Hollington's case (supra) is still good law in Zambia. For those reasons, evidence concerning the conviction should not be admitted.
Mr Malama for the defendant submits that while the decision in Hollington's case (supra) was the law pre-1968 it was not necessarily good law. In fact the decision in Hollington's case (supra) was criticised as bad law. Lord Denning who had argued the case for the admissibility of the conviction in Hollington's case (supra) had this to say in the case of Goody v Odhams Press Ltd (2) at p. 463:

It would not be sufficient to prove that he was convicted of the train robbery. The reason is because there is a strange rule of law which says that a conviction is no evidence of guilt, not even prima
p148

facie evidence. That was decided in Hollington v F Hewthorn & Co., Ltd. I argued that case myself and did my best to persuade the court that a conviction was evidence of guilt. But they would not have it. I thought that the decision was wrong at the time. I still think that it was wrong. But in this court we are bound by it.''
Lord Salmon in the same case said as follows at p. 465:

The defendants sought to amend, no doubt, because of the strange rule of law enshrined in Hollington v F. Hewthorn & Co., Ltd., that in a civil court proof of a conviction is not even prima facie evidence that the convicted man was guilty. I wholeheartedly agree with the Master of the Rolls criticism of that decision. It is to be hoped, now that law reform is in the air, it may perhaps be reconsidered.
Thus it was because of the wide criticism that was levelled against the decision in Hollington's case (supra) and as a result of the recommendations of the Law Reform Committee under the Chairmanship of Lord Pearson, the rule of law enshrined in Hollington's case (supra) was reversed by the Civil Evidence Act of 1968. The matter came up once again in the case of Stupple v Royal Insurance Company Limited (3). This is a case which came before the Court of Appeal presided once again by Lord Denning M.R. It was held in that case that the effect of s. 11 (2) (a) of the Act of 1968 was to shift the legal burden of proof. Lord Denning at pp. 223 and 224 states as follows:

I think that the conviction does not merely shift the burden of proof. It is a weighty piece of evidence of itself. For instance, if a man is convicted of careless driving on the evidence of a witness, but that witness dies before civil action is heard (as in Hollington v Hewthorn [1943] 1 K.B. 587); then the conviction itself tells in the scale in the civil action. It speaks as clearly as the witness should have done had he lived. It does not merely reverse the burden of proof. If that was all it did, the defendant might well give his own evidence negativing want of care and say: 'I have discharged the burden. I have given my evidence and it has not been contradicted.' In answer to the defendant's evidence, the plaintiff can say to him: 'But your evidence is contradicted. It is contradicted by the very fact of your conviction.' In addition Mr Hawser sought as far as he could, to minimise the effect to shift the burden. In this, too, he did not succeed. The Act does not merely shift the evidential burden as it is called. It shifts the legal burden of proof. . . Take a running down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is for the defendant himself. At the end of the day, if the Judge is left in doubt, the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities that.
p149

he was not negligent: see Public Prosecutor v Yuvaraj [1970] 2 W.L.R. 226, 231, in the Privy Council quite recently. But he must show it nevertheless. Otherwise he loses by the very force of the conviction.
Mr Malama submits that the principle of stare desisis still applies in Zambia. He contends that where the laws in Zambia do not provide for a situation such as in the instant case, then the High Court here must have recourse to and abide by the decisions of the Superior Courts in England. The courts must therefore follow the provisions of the Civil Evidence Act 1968 in the absence of any comparable statutory provisions in Zambia.
I have given anxious consideration to the rival arguments in this preliminary issue and I find I am unable to agree with Mr Haselden's submissions in this regard. While the decision in Hollington's case (supra) may have been the common law of England prior to 1968, the decision was reversed by the enactment of the Civil Evidence Act, 1968. It is quite clear that since the passage of the 1968 Act the Courts in England are duty bound to admit evidence of a conviction in civil proceedings. I can not see how it can be argued now that the courts in Zambia should not give effect to the law as it applies today in the United Kingdom.

Section 10 of the High Court Act, Cap. 50, provides as follows:

The jurisdiction vested in the court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or by any other written law, or by such rules, order or direction of the court as may be made under this Act, or the said Code, or such written law, and in default thereof in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice.
There is no ambiguity in the above section. Thus in the absence of statutory or judicial authority in Zambia in matters relating to practice and procedure then the High Court in Zambia will exercise jurisdiction in those matters in substantial conformity with the law and practice for the time being in force in England. The operative words are in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice. It should be added that s. 9 (1) of the High Court Act, Cap. 50, empowers the High Court to possess and exercise all the jurisdiction, powers and authorities vested in the High Court of Justice in England. Now the law concerning the admissibility of a conviction as evidence in civil proceedings for the time being observed in England is that such evidence is admissible in terms of s. 11 of the Civil Evidence Act of 1968. It follows therefore that in Zambia the High Court is bound to follow the law and practice for the time being observed in England and admit evidence concerning a conviction in civil proceedings.
Finally I come to rule of practice concerning the admissibility of convictions. R.S.C. O. 18, r. 7A provides as follows:
p150

(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

____________________________________
|20.rtf|20.pdf 21|27 April 1979|Occo v People|HNA/39/79 |[1979] ZMHC 21|(1979) Z.R. 112 (H.C.)|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.
p113

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
p114

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.
p115

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
p116

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
p117

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

____________________________________
|21.rtf|21.pdf 22|4 May 1979|Mumba v Zambia Fisheries and Fish Marketing Corporation Limited|1978/HP/502 |[1979] ZMHC 22|(1980) Z.R. 135 (H.C.)|
SAM AMOS MUMBA v ZAMBIA FISHERIES AND FISH MARKETlNG CORPORATION LIMITED (1980) Z.R. 135 (H.C.)

HIGH COURT SAKALA, J.
4TH MAY, 1979 1978/HP/502

Flynote

Contract - Written contract - Extrinsic evidence - Whether admissible in evidence.
Employment - Contract of service - Directives from Government altering terms of existing contract - Whether frustration of contract.
Contract - Frustration - Government directives - Whether frustrates and terminates contracts of employment.

Headnote

The plaintiff's claim is for damages for breach of contract of employment entered into between him and the defendant company. The plaintiff was a company secretary. At the trial he produced a written contract and in addition a letter written by him which he claimed to be part of the contract. This letter was contested by the defendant company. The plaintiff claimed that the conditions of employment he had been offered were altered and some of them not fulfilled at all. The defendant company pleaded frustration, contending that the plaintiff's conditions of service
1980 ZR p136
SAKALA J
were altered as a result of the Mwanakatwe Salaries Commission followed by a Government white paper which directed that all salaries of permanent employees were to be within the Government's recommendations. The plaintiff challenged the implementation of these recommendations as unlawful and a breach of his contract of employment.
Held:
(i)Where the parties have embodied the terms of contract into a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document except on certain exceptions.
(ii)A subsequent change in the law or in the legal position affecting a contract is a well recognised head of frustration. At common law, the occurrence of a frustrating event terminates the contract forthwith.
(iii)The Government directives to the defendant company were a frustrating event and put an end to the contract between the parties.
Cases referred to :
(1)Mercantile Bank of Sydney v The Taylor [1893] A.C. 317.
(2)Davis Contractors Ltd v Fareham Urban District Council [1956] A.C. 696.
(3)British Movietonews Ltd v London and District Cinemas [1952] A.C. 166.
(4)Hirji Mulji v Cheong Yue Steamship Co., [1926] A.C. 497.
(5)Fribrosa Spolka Akcyjna v Hairbairn Lawson Combe Barbour Ltd.[1943] A.C. 32.
For the plaintiff:S. A. Mumba, Mumba and Company.
For the defendant:H. H. Ndhlovu, Jacques and Partners.

__________________________________

Judgment

SAKALA, J.:

The plaintiff's claim is for damages for breach of contract of employment entered into between him and the defendant in August, 1975.

In the amended statement of claim the plaintiff pleaded that he is and was at all material times the company secretary of the defendant company. On the 1st September, 1974, the defendant offered him a post of a company secretary which he accepted and a binding contract of employment was entered into. Paragraphs (4) and (5) of the statement of claim read as follows:

4. The salary, conditions of service and fringe benefits accruing from the Defendant to the Plaintiff under the contract of employment were as follows:
(a)Salary: K8,500.00 per annum;
(b)Entertainment allowance: K1,200.00 per annum;
(c)Transport: Free Fiat 132s for official and personal use;
1980 ZR p137

SAKALA J
(d) Housing: Free and furnished;
(e)Leave: 6 working weeks per annum;
(f)Housing allowance: 20 per cent of basic salary;
(g)Medical Aid Scheme: Membership of Lusaka Nursing Home.
5. The Defendant has, unlawfully and in breach of the contract of employment made the following changes to the salary, conditions of service and fringe benefits enjoyed by the plaintiff:
(a)Salary: Reduced to K8,230.00 per annum;
(b)Entertainment Allowance: Completely withdrawn;
(c)Transport: Completely withdrawn;
(d)Housing: Rent at 10 per cent of salary but furniture completely withdrawn;
(e)Housing allowance: Completely withdrawn;
(f)Leave: Reduced to 36 days annually;
(g)Medical Aid Scheme: Completely withdrawn.
The plaintiff contends that by these matters, he has suffered loss and damages. The statement of defence does not dispute that the plaintiff is and was at the material time the company secretary of the defendant company. The contract of employment is admitted but that the plaintiff was employed at a salary of K7,200 per annum from 1st September, 1974, to March, 1975. Paragraphs (3):and (4) of the defence read as follows:

3. The defendant admits paragraph 4 of the plaintiff's statement of claim save as follows:

(a)The salary was K7,200 per annum and not K8,500 as stated in the plaintiff's statement of claim;
(b)There was no Medical Aid Scheme;
(c)Housing though furnished was not free;
(d)Housing allowance was only given to officers not occupying company houses and not to plaintiff who occupied company house;
(e)The plaintiff was not entitled to free transport as shown in paragraph 4 (c) or at all;
(f)The plaintiff was, not entitled to an entertainment allowance under contract of employment.

4. The defendant denies paragraph 5 of the plaintiff's statement of claim and will further state that in effecting changes to the plaintiff's conditions of service it was not in breach of contract but was merely implementing a public or government policy pronouncement regarding the rationalisation of salary structures in the Civil Service and Parastatal Organisations as recommended by Mwanakatwe Commission.
1980 ZR p138

SAKALA J
In the alternative, the defendant company pleads that the contract of employment was frustrated by the Government's action or decision to rationalise salaries.
The plaintiff gave evidence in support of his claim. Mr Jonas Bernard Mubanga testified on behalf of the defendant. The plaintiffs oral evidence was in substance a repetition of what he pleaded in his statement of claim. But testified further that he entered into a contract of employment with the defendant company on the 1st September, 1974. A ZIMCO contract for permanent and pensionable employment was signed. He outlined the conditions of service set out in para. (4) of his statement of claim. He said he enjoyed all these facilities from the 1st September, 1974, to 31st December, 1975, but from 1st January, 1976, new conditions of employment known as Mwanakatwe conditions were imposed on him. The new conditions changed the original conditions as per para. (5) of the statement of claim. The plaintiff testified that by these changes he has suffered loss and damages. He claims damages for breach of contract of employment. In cross-examination, he said he was employed as company secretary. He originally requested for a salary of K7,200 per annum temporarily. He denied that this salary was reassessed in April 1975. He told the court that he disagreed with the letter that stated that his salary had been reassessed. According to the plan, the contract of employment signed in August, 1975, was with effect from the 1st September' 1974. He said the ZIMCO contract entered into with the defendant should be read together with his letter dated 26th August, 1974, document number (2). He testified that housing allowance was paid under cl. 6 (2) of the agreement. The Fiat car and the furniture were not fringe benefits but conditions of service and part of the contract. Entertainment allowance was also a condition of service forming part of the contract. This included the Zambia Medical Aid Scheme. He explained in cross-examination that the new conditions of service were as a result of a meeting at Cabinet Office chaired by the Secretary to the Cabinet which he also attended. He said at the meeting he pointed out that the new proposals would contradict the existing contracts. He said he suggested that it was necessary to serve notices to all employees ending existing contracts thereby making new offers which would include the new conditions. He said he was overruled. The plaintiff further told the court that even when the circular containing the new conditions was received by the defendant company, he again drew the attention of the managing director to the difficulty of implementing the new salaries and conditions. He said he was again overruled. He said the directives to implement the new conditions came from the Government. He continued working despite the new conditions infringing the existing contracts. In answer to a question by court, he appreciated that the original conditions of service had been breached. But he hoped that the new conditions would be revoked.
DW1 who testified on behalf of the defendant was the managing director during the material time. He knew the plaintiff. He said the plaintiff was employed at the request of the chairman who was then the Minister of Commerce. He said although there was nothing irregular in
1980 ZR p139
SAKALA J
the way the plaintiff got the job, he would have liked to advertise the job. He further told the court that with the exception of the managing director, permanent staff like the plaintiff were not entitled to free housing. He said if the plaintiff had a house, he had to pay rent. He conceded that prior to the Mwanakatwe Salaries Commission, the plaintiff was prodded with a car but contributed K20.00 per month. He disagreed with the salary of the plaintiff as shown in document number (3) the ZIMCO contract of employment. He also disputed the date of the contract. He said during the plaintiff's service with the company, his conditions of service changed as a result of the Mwanakatwe Salaries Commission followed by a Government white paper which directed that all salaries of permanent employees were to be within the Government's recommendations with the exception of contract staff who were to be affected after their existing contracts expired. According to the witness, the circular from the Government containing the recommendations was a directive to be obeyed. He told the court that there was an outcry about the new conditions of service but the plaintiff continued to work. The witness supported the plaintiff's evidence in respect of the withdrawal of the car; the reduction of the salary and the withdrawal of furniture.
A consideration of the evidence by both parties as well as of the pleadings discloses very little conflict. The statement of defence as well as the evidence of both parties introduce into the proceedings the Mwanakatwe Salaries Commission recommendations which brought about the changes to the plaintiff's conditions of service. The plaintiff challenges the implementation of these recommendations as unlawful and a breach of his contract of employment with the defendant. On the other hand, the defendant relies on the implementation of these recommendations as part of its defence. Surprisingly neither of the parties has bothered to exhibit these Mwanakatwe recommendations. In my view, this was certainly bad pleading where things were taken for granted. Be that as it may, the existence of the Mwanakatwe recommendations appears to be common cause. On the evidence which appears not to be in dispute, I accept that the defendant implemented the recommendations by the Mwanakatwe Salaries Commission as a Government directive to rationalise the salary structure in the civil service and parastatal organisations. I also accept that as a consequence of the implementation of these recommendations, the plaintiff's salary, conditions of service and fringe benefits accruing from the defendant to the plaintiff were affected resulting in reduction in certain instances and complete withdrawal in others.
A lot of questions were asked by either side as to the plaintiff's starting salary and the date the contract was signed. According to the plaintiff, the salary of K7,200 as per document number (2) was to be temporary. He said after some disputes and discussions, the salary was agreed at K8,500 with effect from 1st September, 1974, although the contract was only signed on 15th August, 1975. Mr Mubanga's evidence on behalf of the defendant was not clear on the point. The plaintiff was adamant that after several discussions it was finally agreed that the salary
1980 ZR p140
SAKALA J
of K8,500 per annum was to be with effect from the 1st September, 1974, and that the agreement although signed on the 15th August, 1975, had to be back-dated to the 1st September, 1974. The plaintiff said that as a result of back-dating the contract he was paid arrears. This evidence was not challenged. I accept the plaintiffs evidence on this point and hold that it was agreed that his salary would be K8,500 per annum and that the contract dated 15th August, 1975, was to be with effect from 1st September, 1974. I agree with the plaintiff that the issue is not one of the initial salary but of what salary he was receiving when the Mwanakatwe recommendations were implemented. The defendant does not dispute that at the time of the implementation of the recommendation the plaintiff was in receipt of K8,500 per annum. This I accept as a fact.
The action is for damages as a result of an alleged breach of a written contract. The contract is contained in document number (3) headed ZIMCO contract and conditions of employment, permanent and pensionable staff end married women. The document should be read together with document number (2) a letter from him to the general manager of the defendant company regarding his appointment as company secretary. In that letter he set out various conditions under which he was prepared to accept the post of a company secretary. The letter is dated 21st August, 1974. In the letter, the plaintiff requested for a salary of K7,200 per annum. He requested housing allowance at 20 per cent of his salary. He also requested for a furnished house at a normal rental. He further requested for a standard company car and other fringe benefits enjoyed by company secretaries in ZIMCO companies. The contention of the plaintiff is that the ZIMCO contract was not intended to express the whole contract of employment. At this juncture, I must resolve the question of whether the plaintiff's requests as per his letter of 21st August, 1974, were made or understood and intended to be part of the ZIMCO contract signed by both parties. The general principle of law is that where parties have embodied the terms of their contract into a written document extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document subject of course to certain exceptions. In the case of Mercantile Bank of Sydney v The Taylor (1) at p. 321 their Lordships had this to say:

It had been proved that the whole terms of the agreement under which Griffin became entitled to his release were embodied in the bank's letter of the 5th April, 1889, which he accepted without reservation or qualification. On that assumption, it is plain that the previous verbal communications which had passed between him and the bank were completely superseded, and could not be legitimately referred to, either for the purpose of adding a term to their written agreement, or of altering its legal ordinary construction.
In the present case, it is the case for the plaintiff that the conditions he requested by his letter were discussed and agreed. The defendant denies that the salary was agreed at K8,500. The defendant denies that Medical Aid Scheme was part of the conditions of service. The defendant also

1980 ZR p141
SAKALA J
denies that the plaintiff was entitled to a free furnished house and housing allowance. The defendant further denies that the plaintiff was entitled to a free car or entertainment allowance.
I have critically and carefully perused the ZIMCO contract in issue. It consists of twenty-one clauses within which are sub-clauses.
A perusal of the same discloses that the plaintiff who was employed as a company secretary was entitled to a salary of K8,500 per annum, 20 per cent housing if not occupying a company house and medical aid scheme if he joined a Medical Aid Society. He was also entitled to leave but I am not clear on the evidence as to number of days as this depended on the grade of the position. There was no evidence as to the grade of a company secretary. I have found no provisions in the ZIMCO contract relating to entertainment allowance, free car and free and furnished house. It may well be that the plaintiff might have been in receipt of K1,200 as entertainment allowance and perhaps had free transport and a free and furnished house. I do not know under what arrangement these might have been provided. But certainly not under the ZIMCO contract subject of this case. I have already observed that the action here is based on the breach of contract. I am satisfied that the defendant's withdrawal of entertainment allowance; transport and a free furnished house could not be said to have been a breach of the terms of the ZIMCO contract because those items were not part of terms of the contract. If they were they should have been mentioned in the contract. This is not an action for unlawful or wrongful dismissal or termination of employment which perhaps would have entitled the plaintiff depending on the arrangements to claim entertainment allowance as well as for loss of free transport and free furnished house.
I have already indicated that the implementation of the Mwanakatwe recommendations did affect the plaintiff's conditions of service as embodied in the ZIMCO contract. This position is admitted. I am satisfied despite the defendant's denial that at the time of the implementation of the Mwanakatwe recommendations the plaintiff's salary was reduced as pleaded; that medical aid scheme was withdrawn and leave days reduced. The plaintiff's evidence is that he protested at the defendant's action but continued working. The plaintiff contends that, these reductions and withdrawals were unlawful and a breach of his contract of employment. On the other hand, the defendant contends that in effecting the changes to the plaintiff's conditions of service, it was not in breach of the contract. But the changed circumstances in implementing a public or Government policy pronouncement regarding the rationalisation of the salary structure in the civil service and parastatal organisation as recommended by the Mwanakatwe Salaries Commission made it impossible to fulfil the original terms of the contract. The defendant's main defence is one of frustration. The plaintiff has argued that the doctrine of frustration in the circumstances of this case has no application because it only applies in cases where by no fault of either party performance is made impossible or illegal or where the contract is rendered something radically different front what was
1980 ZR p142
SAKALA J
originally undertaken. He contended that the contract can only be impossible of performance if the subject matter is destroyed. In the instant case, he submitted that there was nothing impossible about the defendant performing the terms of the contract. The Mwanakatwe Salaries Commission was as a result of Statutory Instrument No. 134 of 1974 made pursuant to s. 2 of the Inquiries Act. Paragraph 2 (a) (b) and (f) of the schedule to the Instrument reads as follows:

Investigate and report on the salaries, salary structures and conditions of service of personnel employed by statutory boards and corporations and by companies in which the State has a majority or controlling interest and to make recommendations for whatever changes may be necessary, having particular regard to -

(a)the need to establish a closer relationship between salaries, salary structure and conditions of service in the public services and those applicable to the staff of parastatal organisations;
(b)the need to achieve consistent policies of remuneration and advancement throughout the public sector;
(c)the method of implementation of the recommendations of the Commission.
On the evidence, I have no doubt that the defendant company was at the material time a parastatal organisation. There is however no evidence of the actual Mwanakatwe recommendations. Both parties however appear agreed on the existence and implementation of the recommendations. For my part, I will assume that position and the consequence on the plaintiff's conditions of service.
It is a recognised principle in the law of contract that performance of contract may be discharged among others by way of frustration. It is not my intention to write a treatise of the law pertaining to frustration.

The question I have to resolve is whether the contract between the plaintiff and the defendant was frustrated by the defendant's implementation of the Government directives. The question is one of construction of the terms of the contract. In the case of Davis Contractors Ltd v Fareham Urban District Council (2) at pp. 720-721 Lord Reid put the matter as follows:

It appears to me that frustration depends, at least in most cases, not on adding any implied term, but on the true construction of the terms which are in the contract read in light of the nature of the contract and of the relevant surrounding circumstances when the contract was made.
At the time of the contract, I have no doubt that the parties did not anticipate the Mwanakatwe recommendations. Viscount Simon in British Movietonews Ltd and District Cinemas Ltd (3) at p. 185 had this to say:

If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different
1980 ZR p143
SAKALA, J
situation which has now unexpectedly emerged, the contract ceases to bind at that point - not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because of its true construction it does not apply in that situation. The original obligations in the instant case under the ZIMCO contract were that the defendant had to pay the plaintiff a salary of K8,500. The plaintiff was entitled to six working leave days per annum and was also entitled to medical aid scheme. They did not, in my view, at the time of the contract, agree to bind themselves in a situation of the Mwanakatwe Salaries Recommendations which unexpectedly then emerged. The fact that the parties might have actually foreseen the possibility of the Mwanakatwe recommendations but made no provision for them does not in my opinion necessarily prevent the doctrines of frustration from applying when the event took place (see para. 1417 of Chitty on Contracts, 24th edn.). Paragraph 1418 of the same edition of Chitty on Contracts states that a subsequent change in the law or in the legal position affecting a contract is a well-recognised head of frustration . The other examples given are the intervention by Parliament or any other authority by legislative action or Government exercising administrative powers affecting the legal situation of the contracting parties. I have had no benefit of decided cases where Government administrative powers or directives have been held to frustrate a contract. The principle is however well recognised.
In the instant case, I have a situation where there has been intervention by delegated legislative action (statutory instrument that set up the Commission). There is also intervention by administrate Government directives. All these combined together undoubtedly affect the legal standing of the parties. The evidence of DW1 is that with regards to permanent and pensionable staff like the plaintiff the directives had to be implemented without any alternative apart from contract staff. The principle of frustration assumes that the frustrating event was not caused by the fault of either party to the contract. In my opinion, the issue is not one of alternatives, but of whether there was a radical change in the obligations affecting the promises of the parties construed in the light of the new circumstances, namely, the implementation of the Mwanakatwe Salaries' Commission Recommendations irrespective of the option by either party to give notice to terminate the contract. The pleadings, in particular the statement of claim, clearly shows the changes that resulted from the implementation of the recommendations. On the evidence, I hold that the Government directives to the defendant to implement the Mwanakatwe recommendations were a frustrating event with the effect of putting to an end the contract between the parties. At common law, the occurrence of a frustrating event brings the contract to an end forthwith, without more and automatically (per Lord Summer at p. 505 in Hirji Mulji v Cheong Yue Steamship CO., (4). In Fribrosa Spolka Akoyjina v Fairbairm Lawson Combe Barbour ltd (5) at p. 70 Lord Wright put the position as follows:
1980 ZR p144
SAKALA, J

In my opinion the contract is automatically terminated as to the future because at that date its further performance becomes impossible in fact in circumstances which involve no liability for damages for the failure on either party.

Applying these principles to the instant case, I hold that the defendant did not breach the terms of the contract but that the contract was frustrated by Government directives. The contract therefore ceased to be binding on the implementation of the Government directives. The defendant company in the circumstances cannot be held liable. Accordingly, I dismiss the claim. As to costs, I consider that the nature of this action demands that in the interest of justice each party pays its own costs. Consequently I order that each party pays its own costs.
Claim dismissed

_____________________________________
1980 ZR p144
|22.rtf|22.pdf 23|10 May 1979|People v Mwaba|HPR/174/1979 |[1979] ZMHC 23|(1979) Z.R. 193 (H.C.)|

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.
p194

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

____________________________________

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 making of such an order.
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.
p127

_____________________________________
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.
p128

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.
p129

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

_________________________________

Download

Election judgments are available on ZambiaLII here.

Siwingwa N.O. v Phiri (1977/HK/267) [1979] ZMHC 20 (19 April 1979);

Group