Dhansukh Khusal v Joseph Stewart - Smythe (1971/HN/412) [1971] ZMHC 5 (23 June 1971)

DHANSUKH KHUSAL v JOSEPH STEWART - SMYTHE (1971) ZR 97 (HC) HIGH COURT I BRUCE - LYLE J 20 23RD JUNE 1971 (1971/HN/412) Flynote Rent control - Sections 2 and 4 (2) (a) of Rent Control Act - Vesting jurisdiction in subordinate court of first class - Whether ultra vires s. 98 (1) 25 of the Constitution. Headnote Plaintiff brought an action before the High Court for the recovery of possession of certain premises. It was urged on behalf of the defendant that under s. 2 of the Rent Control Act jurisdiction in the matter was vested only in a subordinate court of the first class and was outside the 30 jurisdiction of the High Court. On a reference whether ss. 2 and 4 (2) (a) of the Rent Control Act were ultra vires s. 98 of the Constitution (jurisdiction of the High Court): Held: ■ ■ Sections 2 and 4 (2) (a) of the Rent Control Act were not ultra vires 35 s. 98 of the Constitution as there was no intention to oust the jurisdiction of the High Court. The sections only provided that matters coming under the Act were to be initiated in a subordinate court of the first glass. Where there was no subordinate court of the first I class matters could be initiated in the High Court. 40 Legislation referred to: Constitution of Zambia, 1965 (App. 3), s. 98. Rent Control (Temporary Provisions) Act, 1968 (Cap. 4), ss. 2 and 4 (2) (a). Lloyd Jones and Collins, for the plaintiff. I Ellis & Co., for the defendant. 45 ■ 1971 ZR p98 BRUCE - LYLE J Judgment Bruce - Lyle J: This matter has been referred to a judge for a ruling under O. XL, r. 9. This is an action for the recovery of possession of premises. When this matter came before the District Registrar it was urged by the 5 defendant's counsel that defendant was entitled to the protection of the Rent Control (Temporary Provisions) Act 1968 and therefore the High Court had no jurisdiction to hear the cause because the jurisdiction was vested in the subordinate court of the first class by virtue of ss. 2 and 4 (2) (a) of the Rent Control Act. Counsel for plaintiff then contended 10 that those sections of the Rent Control Act must then be deemed to be ultra vires s. 98 (1) of the Constitution and it is this issue which has been referred to me for a ruling. Section 2 of the Rent Control (Temporary Provisions) Act 1896 * (hereafter referred to I as the Act) reads: 15 ■ I "'Court' means - (a) in relation to premises the rent of which exceeds an amount equivalent to three thousand six hundred kwacha per annum, the High Court; (b) in relation to all other premises, a Subordinate Court of the 20 First Class. " ■ Section 4 (2) (a) of the Act reads: "2. It shall not be lawful for the landlord of any premises - (a) to enforce against the tenant otherwise than by proceedings in the Court the right to recover possession of the premises." 25 ■ The monthly rental of the premises is K80 per month and therefore to obtain possession there should be proceedings in the court which is the subordinate court of the first class by virtue of s. 2 of the Act but the plaintiff's contention is that the sections are ultra I vires s. 98 (1) of the Constitution. Section 98 (1) of the Constitution reads: 30 "There shall be a High Court for the Republic which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law." Does s. 2 applied within s. 4 (2) (a) of the Act take away the jurisdiction of 35 the High Court as stipulated by s. 98 (1) of the Constitution? It is my view that this is not the interpretation. The High Court has the jurisdiction in civil proceedings as laid down by the Constitution but the Act in my view states that where the rent of the premises is under K3,600 per annum, proceedings under the Act shall be commenced in the 40 subordinate court of the first class. In other words where a right under the Act accrues in an area where there is no subordinate court of the first class or where for other reasons there is no subordinate court of the first class the High Court can exercise the jurisdiction of that subordinate court. To hold that these sections of the Act take away the jurisdiction of the 45 High Court under the Constitution would create an unpleasant situation. ■ ■ ■ 1971 ZR p99 I BRUCE - LYLE J In criminal matters the High Court has concurrent jurisdiction with the subordinate courts and the mere fact that these subordinate courts are given certain defined jurisdictions does not mean that the jurisdiction of the High Court in criminal proceedings under the Constitution is ousted by the legislation creating the jurisdiction of the subordinate 5 courts. I would therefore hold that the ss. 2 and 4 (2) (a) of the Rent Control (Temporary Provisions) Act 1968 are not ultra vires s. 98 (1) of the Constitution. In view of the above ruling I would also hold that the action in this 10 case should have been commenced in the subordinate court of the first class and I do exercise my powers under s. 24 (2) of Cap. 4 and order that this cause be transferred to the Subordinate Court of the First Class, Ndola for hearing and final determination. I Costs in these proceedings thus far to be in the cause. 15 Order accordingly ■ * "1896" should read "1968" Document 27 of 54 1971 ZR p99 EDWARD KUNDA v THE PEOPLE (1971) ZR 99 (CA) COURT OF APPEAL DOYLE CJ, GARDNER AND BARON JJA 21st SEPTEMBER 1971 I (Appeal 20 No. 50 of 1971) Flynote Evidence - Confessions - Both written and verbal - Voluntariness - Duty of magistrate to enquire whether objection to admission. Headnote The appellant was found by the police on the roof of a store and in possession of some stolen property. He made a statement to the police 25 admitting the charge of having broken into the store. The trial magistrate did not ask the appellant whether he had any objection to the admission of evidence of the confession being given. Held: ■ The question of the voluntariness of a confession applies to both 30 written and verbal confession. Judgment Doyle CJ: delivered the judgment of the court: In this case the appellant was seen by a policeman on the roof of the premises broken into. After a chase he was arrested and in his possession was found a small part of the stolen property. When arrested the appellant is related to 35 have said, "I admit the charge. I am the one who broke into the store." The learned magistrate has referred to that in his judgment. Those words are in fact a confession and before admitting it as evidence the magistrate should have ■ ■ satisfied himself on the question of voluntariness or otherwise. In fact when the appellant came to give evidence he said he admitted the 40 charge because he was afraid of being killed. It does not appear that the magistrate has in fact fully considered the question of voluntariness. We would draw the attention of police officers and magistrates to this. The question of the voluntariness of a confession is not restricted to ■ 1971 ZR p100 BRUCE - LYLE J confessions that are written down. It applies to all confessions. Where the accused is alleged to have made a confession the trial magistrate should ask him does he object and then proceed in accordance with his reply. However, in our view the evidence was overwhelming even without this 5 admission. We consider that the learned magistrate must on this evidence have convicted and we apply the proviso. We dismiss the appeal against conviction and sentence. Appeal dismissed I