CHIKUTA v CHIPATA RURAL

COUNCIL (1974) Z.R. 241 (S.C.)

SUPREME COUNT (CIVIL JURISDICTION)

DOYLE, C.J., BARON, DC.J., AND GARDNER, J.S.

8TH OCTOBER, 1974

S.C.Z. JUDGMENT NO. 38 OF 1974

Flynote

High Court - (commencement of action - When procedure by way of originating

High Court- Commencement of action by way of originating summons when

Legal practitioners - Conducting cases - Swearing affidavits containing hearsay

Headnote

The appellant was the secretary of the Chipata Rural Council, and a specified officer
as defined in the Local Government Officers Act. On the 28th August, 1972, the
appellant was convicted on two counts of forgery and uttering, contrary to ss. 347 and
352 of the Penal Code. He was sentenced to six months' imprisonment with hard
labour on each count and the whole of those sentences was suspended. Prior to this he
had been suspended from duty by the respondent.

On the 1st September, 1972, the Council met for the purpose of determining whether
or not the appellant should be dismissed. The then chairman of the Council gave his
view of the appellant's behaviour, which was clearly very favourable to the appellant.
A vote was taken and, by 34 votes to 1, the Council resolved to remove the appellant's
suspension from duty and to reinstate him in the Council's service. Subsequently,
there was correspondence with the Minister and on the 3rd May, 1973, the Council
reaffirmed its resolution that the appellant be reinstated. There was further
correspondence with the Minister and on the 5th October, the Council, by resolution,
reversed its previous resolutions and dismissed the appellant from his employment
with effect from the date of his conviction.

The appellant brought this matter before the High Court by means of an originating
summons seeking a declaration that he was still employed by the Council. The High
Court refused to make the declaration sought by the appellant.

Held:

(i) There is no case in the High Court where there is a choice between
commencing an action by a writ of summons or by an originating summons. The
procedure by way of an originating summons only applies to those matters referred to
in Order 6, rule 2, of the High Court Rules and to those matters which may be
disposed of in chambers.

(ii) 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

Legislation referred to:

High Court Rules, Order 6, rule 2, Order 30. 20

For the appellant: N.Kawanambulu, Shamwetna & Co.

For the repondent: E.Dumbutshena, Dumbutshena & Co.

______________________________________

Judgment

DOYLE, CJ.: This is an appeal against the refusal of the trial judge to make
declarations to the effect that the plaintiffappellant still is an employee of the
respondentdefendant council (hereinafter called the council).
The facts, in so far as it is necessary to refer to them in this judgment, are as follows.

The plaintiff was the secretary of the Council and a specified officer as defined in the
Local Government Officers Act. On the 28th August, 1972, the plaintiff was
convicted on two counts of forgery and uttering, contrary to sections 347 and 352 of
the Penal Code. He was sentenced to six months' imprisonment with hard labour on
each count and the whole of those sentences was suspended. Prior to this he had been
suspended from duty by the respondent.

On the 1st September, 1972, the Council met for the purpose of determining whether
or not the appellant should be dismissed. The then chairman of the Council gave his
view of the appellant's behaviour, which was clearly very favourable to the appellant.
He asked for other views, but whether or not these were given is not clear. In any
event a vote was taken and by thirty-four votes to one the Council resolved to remove
the appellant's suspension from duty and to reinstate him in the Council's service.
Subsequently there was correspondence with the Minister and on the 3rd May, 1973,
the Council reaffirmed its resolution that the appellant be reinstated. There was further
correspondence with the Minister and on the 6th October, the Council, by resolution,
reversed its previous resolutions and dismissed the appellant from his employment
with effect from the date of his conviction.

The evidence in the case was entirely contained in affidavits made by the respective
advocates on each side. These affidavits were entirely hearsay. I would like to say that
I have noticed an increasing practice amongst lawyers in introducing evidence in such
a manner. In my view this is not merely ineffective, but is highly undesirable,
particularly where the matters are contentious. In the instant case the affidavit made
by the advocate on behalf of the defendant made serious allegations against the
chairman of the Council, and it was clearly improper for the defendant's advocate
personally to make such hearsay allegations. Furthermore, as the deponents of
affidavits may be cross-examined thereon, the position can arise in which each of the
advocates would be cross-examining the other. I hope that this practice will now
cease.

In the result, the learned trial judge held that the earlier resolutions of the Council
were made mala fide, a fact which was neither admitted nor proves. Accordingly he
held that the Council had the power on the 6th of October, 1973, to dismiss the
appellant by reason of his conviction. He refused to make the declaration requested.

It is plain that the learned judge, having determined the matter by finding as a Act
something which had neither been proved nor admitted, was in error and ordinarily the
result would be that the appeal would succeed. However, for procedural reasons the
appeal must in fact fail. The matter was brought before the court by means of an
originating summons. The practice and procedure in the High Court is laid down in
the High Court Rules, and where they are silent or not fully comprehensive, by the
English White Book. Under Order 5 of the English Rules of the Supreme Court, rule 2
lays down what proceedings must be begun by writ; rule 3, the proceedings which
must be begun by originating summons; rule 4, the proceedings which may be begun
either by writ or originating summons; and rule 5, proceedings that may be begun by
motion or petition. The Zambian Rules are much more rigid. Under Order 6, rule 1,
every action in the court must be commenced by writ, except as otherwise provided by
any written lw or the High Court Rules. Order 6, rule 2, states that any matter which
under any written law or the Rules may be disposed of in chambers shall be
commenced by an originating summons. Rule 3 provides for matters which may be
commenced by an originating notice of motion. It is clear, therefore, that there is no
case where there is a choice between commencing an action by a writ of summons or
by an originating summons. The procedure by way of an originating summons only
applies to those matters referred to in Order 6, rule 2, and to those matters which may
be disposed of in chambers. Chamber matters are set out in Order 30 of the High
Court Rules. Counsel for the appellant was unable to show us where under the Order
this matter could be begun by an originating summons. Paragraph (j) of rule 11 of
Order 30 does refer to "such other matters as a Judge may think fit to dispose of in
chambers."

That clearly is not so wide as to allow a judge, carte blanche, to hear any sort of action
in chambers and clearly does not apply to an action for a declaration which depends
on evidence being called on both sides. Even if the English practice could be prayed in
aid, it would not help, as there an action for a declaration is brought by writ.

It is clear that these proceedings have been misconceived. As the matter was not
properly before him the judge had no jurisdiction to make the declarations requested
even if he had been so disposed. The appeal must be dismissed.

Judgment

Baron DCJ: I agree.

Judgment

Gardner JS: I concur.