Edward Jack Shamwana v Attorney General (Appeal No. 12 of 1986; SCZ Appeal NO. 9 of 1988) [1988] ZMSC 82 (23 July 1988)

/ (56) IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) scz J"\p9e.:::.1 .. No; . .. _9 -of.~-i-9:s,i· App0 a l No. 12 of 1986 EDWARD JACK SH AMWANA Appellant and CORAM: Silungwe, C. J., Ngulube, ·o.c. J. and Sakala J. S. THE ATTORNEY-GENERAL Respondent August 28; 1987 and July 23, 1988 Appellant in person B. L. Goel, Senior State Advocate, for the Respondent JUDGM E NT Silungwe, C. J., delivered the judgment of the ·court. Case referred to~ (1) R' V -. Oakes (1959) 2 QB j50 (2) Vacher v London Society of Compositors (19~3) A.~. 107 at pg 117 (3) Gre y v Pe arson (1853) 6 H. L. C . 61 at page 106 , (4) Direct U. S. Cable C. v Anglo American Telegraph Co. (1877) 2 App. Cas. 394 at page 412 ~5) London and India Docks ·co. v Thames Steam Tug, etc., Co. (1909) A. C. 15, at page 23 · ~6) auins v Javis (1953) 1 W. L. R. 649 (DC) (7) Attorney-General v Chipango (1971) Z. R.l (8) Attorney-Gener-al v Juma (1984) Z. R.l ( 9) Nkumbula and The Attorney-General (19 72) ZR 204 This is an appeal against a judgment of the High Court dismissing the appellant's application for an ord~r that the President's order proscribing his petition to the National Assembly was wrongful, unlawful and unconstitutional. 2 I • • • J2 ( 5 7) In his first ground of appeal, the appellant argued that, aLthough the President's order proscribing his petition to the National Assembly was published in the Gazette, the said order was not published in any local newspaper as required by law. The relevant provisions of the law are to be found in Section 53(1) of the Penal Code, Cap. 146, and are in these terms: ""53(1) If the President is of the op:rnion that there is any publication or series of publications published within or without Zambia by any person or association of persons matter which is contrary to the public interest, he may, in his absolute discretion, by order published in the Gazette and in such local newspapers as he may consider·necessary; declare that the particular publication or series of publications, or all publications or any class'of publication specified in the order published by that person or association of persons, shall be a prohibited publication or prohibited publications, as the case may be." There can be no doubt, as the learned trial judge found, that the "absolute discretion" of the President referred to in the section relates to the banning of any publication whose contents are, in the President's opinion, contrary to the public interest. The critical issue that arose then, as it does now, ~oncerns the interpretation of the expression: " ••. by order published in the Gazette and in such local newspapers as he may consider necessary ... " The learned trial judge came to the conclusion that "publication of the order in the Gazette is mandatory whereas publication in a local newspaper is left to the President to decide whether it is necessary." This finding came under attack by the appellant who strongly submitted that the court below was wrong to interpret the section as conferring upon the President an unfettered discretion whether or not to publish the banning order in a local newspaper as the ordinary meaning of the requirement is that the President must publish the order in the Gazette 3 I • •••. J3 (58) ,. and in a local newspaper. Both sides subscribed to the view that publication of a proscription order in the Gazette is mandatory. There was, however, a divergence of opinion between both sides in regard to publication in a local newspaper. The appellant contended . that such publication was equally mandatory because the two requirements were separated by the word "and" and not uor", the former being conjunctive and the latter disjunctive. He made reference to Maxwell on Interpretation of Statutes, 12th edition, pages 232 - 234 wherein i t is stated that - ) 11 In an ordinary usage,, 'and' is conjunctive and disjunctive. But to carry out the intention of the legislature it may be necessary to read 'and' in place of the conjunction 'or', and vice versa." 'or' (See also Odgers' Construction of Deeds and Statutes, 5th edition, pages i 378 - 379). The appellant went on to say that although Parliament may intend the word ttor" to mean "andtt as in R v Oakes (1), here the ordinary usage of the word "and,. should apply. On the other hand, Mr. Goel submitted that publication in a local newspaper was discretionary because, on the authority of R v Oakes (1), it was necessary in this case to read "or" in place of hand''. Mr. Goel's further reason was that the use in the section of the word "may" in the expression "as he may consider necessary" meant that publication in a local newspaper was permissible. A reference to ~he Interpretation and General Provisions Act, Cap 2, shows in section 4 that "4(4) Where the words "or", "other" arx:1 "otherwise" are used in any written law they shall be construed disjunctively and not as implying similarity, unless the wo1."d "similar" ... or some other word of like meaning is USC:..'CI." '-- There is, however, no reference in the Z'lct to the word "and". In the circumstances, the ordinary sonse or usage of the word is to be adhered to unless absurdity or repugnance would result. 4 / •••• J4 (59) This means that the word "and" is to bG used conjunctively. In the words of Lord Wensleydale quoted by Lord Macnaghten in Vacher v London Society of Compositors {2) "Now it is 'the universal rule,' as Lord Wensleydale observed in Grey v. Pearson {3} that in construing statutes, as in construing all other written instruments, 'the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may ro rnodifiE::rl, so as to avoid that absurdity and inconsistency, but no further.'" In the present case, we are satisfied that the word "and" has been used in a precise and 1.mambigous context. The words of Tindal C. J., as quoted by Lord Macnaghten in Vacher (2), at page 118, are instructive : "If the words of the statute are in themselves precise and uriaml)igous, then no more can be nece~sqry than to expound those words in their natural and ordinary sense. The words themselves alone, do , in such case, best declare the intention o:t the lawgiver. " And as Lord Blackburn said in Direct U. S . Cable c. v Anglo American Telegraph Co. (4) cited by Cord Atkini;n in London and India Docks Co. v Thames Steam Tug, etc., Co. (5) "The tribunal that has to construe an Act of a Legislatur.e, or indeed any other document, has t o determine the intention as expressed by the words used. Ancl i n order to understand these words it is natural to enquire wha t is the subject-matter with respc..-->et to which they are used and the object in view. 11 In any event, as Lord Goddard C. J. said in Burns v Javis (6) "A certain amount of conman sense must be applioo in construing statutes. Theobj(;!Cts of the Act must be considered." (See also Craies on Statute Law, 7th edition, at page 65). He r e , the "subject-matter" is the banning order and the "object in view" is communication of the banning o r der to members of the public by publishing it in the Gazette and in such local newspaper as the President may c o nsider necessary. Contrary to Mr. Goel's submission, the o rdinary usage of th e word "and" 5 I •.••• is to be adhered to, th a t is, the word is used in a conjunctive JS { 6 O ) sense. Further, the expression_"a-? h e . m,pY consider necessary" . \ ,. does not mean that the President :has a di~cretion ~o publish or . .. . .•; ~ ' . not to publish a banning urdie·r i.n a .. loc al newspaper; all that ' ~· : ,' . ,:. . the e xprE)ssion means, as thEr app,~11.,a'?-~ ~u~m i ~~.ed , is that the ' .. • . .r.1 . r. i ·' . ,. I choice of a l ocal newspaper ~ts :i,;t, t7o be d e termin~d by . the President. Tl1e application: · oc#~;_tl:rn .r,t,F\f-f:1:- ~~~~ ~ consideration 7~he Pres ide nt h a s 'ah" 1abso1 ute may, therefore , be stated thus! ,. · jC: ·'·.hoy ·" _,. .. J : ' ,, ' r ·' - I\ ::, · discretion to decide whether or n o t t o b2n any puoiication which, in his opinion, is cont~,ry to the public interest. Once the decision is m~de to ba~.s~ch a pub lication, the banning Qrder ''i's req'Uired •to be pub],i..s hed in the Gazette ~nd . . .... in a local newspaper 16f th-e Eresi.c;eQt I .s. ch o ice . To this extent, the learned trial judge misdirecte d h erself. j ; ' . _1 "... ' : ' ! It must now be decided whethe r th0 ~reside ~t•s·failure . . - to publish the banning o rder in a local now~pape r ±~- t~tal -.. , , . ' • J / • : . I' l ' l ' ' to th~ v~lidi ty ' of the order. The :=:i.ppcllo'.:!.nt Is viewpcint . ,' I ' was that such failure was fatal as th0 roguirement was : mandatory. a~t Mr. Goel argued in the a lternaiive that:·th~ requireme nt was direttory and that, as such, nbd compliancs •· i was not fatal t6 the banning o rde r . The ;issue of mandatory (o L 'impe rative) and dire. CtQ~Y; ; . (or permissive)· pro ~isions has p~eviously been di$cUssed • : ' I ' and considered by this Court in two fa i rly rec:ent ca·s-eis., namely, Attorney-General v Chipango (7) and Attorney-General v Juma (8), both of which we re constitutional cases. Ho~ever, the distinction between mand a tory and directory provisions equally applies t o ordinary statute s, as in tbis case. The distinction is that an absolute r equirement (or provision) " must be observed or fulfilled ex ac tly ; howeve r, it is enough 6 / ••••• I'. I r- '.l',,,'L) ,:; •. I ( 61) \• if· a direc tory requitament i,fk,8~served or fulf i1ied in -~u:bstante. InChipang6 (7), Doyle, ·1C. J,, l1p9 this to say,··~t p~g~·;.6·,·!i (lines 20'- 40): I ·, ;,It '1s imPossible to lay: down any general rule for determinihg 'No universal wl')§ther a provision is imperative or directory. rule' , said Lord Campbell, L. C. , c;m be: luid down for the cqn,struction of statutes, as to wheth0r mandatory enactments shali. be considered dir~ctory only or obligatory with an ;µT!pli~ nullification for disobedienc6 . It is the duty of Courts of Justice_ .. t,o try to get i:l.t of;~he Legislat~~ by carefully attending to the whole scope of the statute, to be construed. • P1nd Lord Penzance said 'I .believe as far as any rule is concern~<l, you cannot safely go further · .. than that in each cuS2 yoL1 must look to the subject-matter; Consider the importance of the provision that has been disregarded, and the r:.,lation of that · provision · -J;o the general object intended to tB secured by -the Act; and upon a review of the case in tll~t aspect decide whether . the matter is what is called imperative m.0 only directory., ' " th~ r~al intention i , ,,-. I'.': In this case, the general object int0nded to be secured ~y Section 53(1) of the Penal Code is the publication of the · banning order to the general public. This is particularly significant in view of the provisions of section 54 of the Penal Code w~ich make, inter alia, r~production or possession of a p,rohibited publication a criminal offence (misdemeanor}, Unl~ke Chipango (7) and J~~ (8}, the provisions here are virt\1.a11·~ for th1= benefit of the goner al public. Thi.s, however, is not,~hat is crucial; what is crucial is the general object intended to be secured by, the requirGrn,:0nt and, consequently, whethe~ the particular requirement CQn be regarded as mandatory or ,di_rect'bty. In Chipango (7) i t was held ~ •inter alia, that publication ·, in the Gazette (within the prescribed pcrioq) of Chipango's . ,, . , detention was a mandatury cons ti tutionil.l requ.i\;~'-'ment designed to guard against the pqss~bility of the d~tainee being held I . I incomm~nicado, for· a person ought not to be whisked away in secret. In any event, rcl~tives or friends of the detai~~e may wish to visit, or to take some provisions to him or even institute 1 I .••. J7 (G2) legal proce edings to secure his earl y': r 0,io 2 qe . ;. , In that case , failure to comply strictly with tho mwnd~tory-requirement caua ed ''further imprisonme nt unde r th~ dot~~ t~on order to be inVal,.'id." In Juma (B}, the detainee wa s scr v ~d ~ ith grounds for his detention written in the Eng lish l?.ngu,~gu which he could neither r ead nor understand. Howev er, ~s the grounds were tr~nsl ated in writing into the d e tai nc e:' s l anguage which 1 'he unde rsto od and the grounds were fully mcp l3.ined to him, this ~ tourt held that the spirit of the C0nsti t uti o nal require ment had bee n observed and, as th e gGner cil ob ject t o be secured by the requirement had been f ulfill e:d ., the requirement was, ··in those circumstances, r egarded 2:..s d ire ctory. !n - ~~is c ase, the general obj~ct t o b e secured by the r~quire n:i~nt is t o c ommunicate the b,.:mn i ng orde r to the ' ~enetal 1p~blic. In our opinio n, publication of the banning ' brder to. t~e g~neral publ i c is man~ ~to rv . As the g e neral object of the r~quirement was her~ f u lfi l led thr ough publicatio n ;6£ the banning Order in the Gaze tl:,:::, we d o ~1ot think th a t d~issio n t o publis h it in a local n aws p nDer C Rn be said to be fatal to its validity. In other word s , whils~ the publication of the bannirig order to the ge ner a l public is mand ator y , we would regard the requ irem e nt t o publish i n a local newspape r as d ire ctory . The s econtl ground of appeal alleged th a t the court b e low was wro ng to hold that the petiti0n w~ s not before Parliament, h aving held that the a ppellant's ovi.c~.(H1ce was uncont rov e rt ed . . ' The on°ly ev ide nce before the court b e low v1u s cont ained in the app ella nt' s unchal!enged af f idavit. I t wn s for the appellant to show on a balance of p·robabili tio .s th a t his petition was o I - - - - - .11 •-- - - - - J8 (63) befGre Parliament prior to the issuancG of the banning order. The only evidence on th8 matter was contained in paragraphs 4 and 5 of the affidavit and read as follows: "4 That under the accep,ted proc~,dnre: in "'. dl:lmocr1cy, I together with Musakanya wrote v. i?QU. tion to Parliament through our member of parliament for constituency expr~ssing our griev~nces. 5 That before the petition could m bcc.1rc1 but· after the Speaker and all members of Parli.::m1Gnt received ·copies thE= President declared the petiticn 3. prohibi tE..-<l publication under ,s • 5 3 0£ tbc Pi..-mal Code • '' According to the appellant, "when th2 peo:l:ition was ready t.o be debated as stated in paragraphs ,!, an'-1 5 11 uf his affidavit, it was in order in every way and "w;:,.s b. Jfoi-0 Parliament." He went on to say that - "In any event common sense and logic must c.1pply. Parliament could not be ready to debate the potitLiJ:). ~s statoo in paragraph 5 unless the Spe~ker h~,d p:1s.,:,0d it, for until then, the question of the debate: could not a1:isc. The standing order would not have lxien complicc:i with,," In order to dete~mine whether tho 29pellant's petition was in law before Parliament, that is, that the petition formed part of the "proceedings in Parliamont," i t is necessary to turn to the National Assombly Standing Or6ors 1980 which ~re made under ~he provisions of Article 90(1) of the Constitution. The most relevant Standing Order for our purposes is Order 152 i-which lays down the procedure to b0 followed in the submission of a petition prior to its presentation by a member of Parliament in terms of Standing Orders 153 and 154. Standing Order 152 provid8s that - "Every petition shall be signed at th2 lx.-ginning thereof by the member in charge of it and et(\X>.si tc-d for. at 1€:ast one clear day with the Clerk , who , ;:,ftor examining it , shall subrni t it for Mr . Speaker ' s ap1::irov c.1L No . petition shall be pres12nted until such approv2.1 has boon given by the petition being endorsed as follot~s ~ 'Passed by Mr . Speaker. ' " J9 ( 64 l Quite clearly, paragraphs 4 ~ L1ci 5 of the appellant's affidavit mE:rely serve to establish 1:h[,t h<';; , together with another person, wrote a petition to Parli a ment, through their member of Parliament, in which thGy expressed their grievancei and that the Speaker and ~11 me mbers of Parliament received copies of the petition but that b 0 fore i t could be heard i t was proscribed by the Prosida nt under Section ~3 of the ' Penal Code. There is thus no evidencQ on rocord to show that the procedure as laid down in Standing Orde r 152 was complied with. It is not enough to prove that copi~s of the petition wore sent to th& Speaker and to all membe rs of Parliament. It must be established: ( 1} (2) that the member of Parliament in chw."CiC of the petition (al signed it at its ccx,1rnoncemcmt; and (b) deposited it with the Clark of thG National Assembly for at least one cle ar d~y; that after examining the petition, the Clerk subnitt"''Cl it to the Speaker for <.1.ppi:0v~l; and that the Speaker duly approved tho petition by endorsing it with the words •- " Passed by Mr. Speaker." It must be empha sised that "No petition sha ll be presented until" the Speaker's appr<;val has b o on give n by the petition b e ing endorsed aa foll0ws: "Passed by !vir. Speaker." There is here no evidenqe to show that thnt stage was ever reached. It follows that the appellant's potiticn c ould not have been, and was indeed nut, presented to Parliament; as such, it did ne t form part of the proceedings in k1 ~l1.·li.::rn1cnt. (Sec also Erskin~ May's Parliamentary Practice , 17th e dition, page 62}. In the appellant's own words! "ParliaJnent could not ~ i ready to d<G:,,::to tbo petition as stc\ted in Paragraph 5 unless the ,S;~c:,ker held passed it, for until then, the quce~:i on r_,f tll,..: debate cuuld not arise. The Stc":nd i.11<;.1 Oeler would not have bc~n complied with. " 10 / .• . •• JlO (65) This being the situation in which the app~llant found himself, his second ground of appeal cann0t succeed. Th~ third ground of appeal w~s th~t the findings on wh0ther ·or not the petition was befuro Parliament bad been based on evidence not before the Court. On the contrary, it is quite clear that the trial court's findings were based on the evidence before it which was co~t~in&d in the appellant's own affidavit. This ground is misconcGi~od and cannot conceivably be entertained. In his fourth ground of appoal, the appellant submitted that the court below had boen wrong to hold that it was intra vires the Constitution for the President to ban a petition to Parliament. He urged that no petition to P3rliament could ever be against tho pu~lic interest within the meaning of section 62 of the Penal Cod~ or indeed in any other sense; and that, as such, no d~bate in Parliament could ever b~ against the public inter0st. He went on to say thnt the President could only exercise the powers under section 53 of the Penal Code if the off3nding publication is "contrary to public interest." f-lc furth,,ff submitted that pa~agraph 10 of his affidavit spocific2lly stated that there was nothing subversive in it; and thc1.t bocause "there is no debate, or matter in Parliament which can be 'Contrary to ~ublic interest' it follows that tho President acted unlawfully and uncunstitutionally when ho banned (his) pC?tition." The nub of this ground hinges on thu appellant's belief that the petition was before Parliarocnt 2nd th~t , as such, freedom of deba'te could not be ccns\.ff,11.'. by a Pn::!sid8ntt.al opinion no matter how honestly held that opinion might be. As wo havo already held, the petition w~s not before Parliament 11 / .. . . . . Jll and so, the banning order cannot b0 s~id t o have interferred with the freedom of debate in Parliament. It is Parliament that has conferred (under Section 53(1) of tho Penal Code) an absolute discretion on the Presidunt t o ban a publication which, in his opinion, is contrary to F~Jlic interest. Public interest is defined under soctio n 62 of the Penal Code in these terms: 1162. For the purposes of sections fifty-thr0c to sixty-one both inclusive...... . ... '?t1hJ..i.c interest' means the interest of defence, public safety., public order, public morality or public h ::.:,:i.lth , " ,' Unless it is proved that the Presid~nt nctod in bad faith, o r contrary to law, or under a vi0w of tho facts which could not reasonably be entertained, his ~ction cannot be impugned. Ther~ is no such proof in t h is case. Accordingly, the court below was not in error t o held that the President's action in the matter W3S intra vire s , The fifth ground of appeal allege ~ that the court below was wrong to hold that a detained p 2 rson cann0t petition Parliament f o r a remedy up0n a per a on~l or public intcirest. This ground was based CJn the follovTi!.lg p~ssage:: of the trial court's judgment: 11 I find that the circumstances pr0s2,nt.:.:d at the material time justified the President's acti~n ·,·Jhen the appellant I s interests were we ighed against those of the public in gen~ral. It was important to maint.:iin J;,Hblic order and wha t is in the public interest is a qt!Cstion of oolance between the interests of the incliv:i.du.al complaining and those of the public at large. circurnst~nces it was proper for th~ Pn:,sid::nt tu prefer the interests of the public to thoG~ of t1K~ individual. The applicant has not shown that th__. Prcsi:-]ent' s action was in bad faith or f or improper mcrLivc.~. c,J: was taken under extraneous considera tion, or un..:ler 2- view of the f2acts or the law which could not 1x,·:.sc•m~.)ly re ent~~rtainc-<l. " I £incl i.:h.::rt under the We d o not r ead in this p ass a ge a f i ncling t o the effect that a detain e d p e rson cannot petition Parliament for a remedy l 2 / . . ... Jl2 (67) upon a personal or public interest. Thu thrust of the passage is obviously that, in the circumst~nces of this case, i t was proper for the President to prefer the interests of the public to those of the individual. In our view, the appellant's interpretation of the passage quotcJ ahova i~ erroneous and his ground based on i t cannot succeed. The sixth and final ground of app~el was that the court below was wrong to equate the powers of the President under section 2(1) of the Inquiries Act, Cap. 181, with section 53 of th€- Penal Code when those latter :;,lclt/CffS arc il.tra vires the Constitution and both would fall QW~Y if they conflict or restrict the enjoyment of rights conferred under the Constitution. We turn again to the, judgment -:d: U:10 tri~-1 court where we find the following passage at page 9: Act, ( 9 l • of the Pon;:~l Ccc:G is 2(1) of th0 Inquiries case of Nkurt.!Jula. tmd Sectic,n :rrrr of-Cap. "The wording of section 53 similar to that of section Cap. 181, discussed in the 'Ihe Attorney-Gener a l 181-reads : - - -------- 'The President may issu8 a commission 2,.p~x,inting one or more Commissioners to inquire into ~ny m~tter in which an inquiry woul ~ ,, in the or-in.ion of the President, be for the public welfare. ' Baron J. P. stated that a d8cision made under a ;_XMC!r e;rprcssed in such terms cannot be ch;;i.llengE..<l unh~ss it can be shown that the person vesteJ with the ~ow~r RCtm in bad faith or from improper motives c;r cm an extraneous consideration or under the view Gf th:·· f:1cts or another law which could not rcasonabl y be cnt,::1·tc:iine-. J. " It is obvious that the compRris~n between the provisions of section 5 3 of th~ Penal Code and .s0ci::ion 2 ( 1) c.,f the Inquiries Act was made in relation ta the ?rinciple of law laid down in Nkumbula (9) {where s8cti0n 2(1) of the Inquiries Act was discussed) and the ~rial cocrt c~ma to the conclusion that that principle was equally appl.icable to tho present case. 13 / , . . . . Jl3 (68) The comparison was not made for any other purpose. There is thus no merit in the appellant's fin~l ground. The result is that the appeal is dismissed . As the appeal raised new points of law o f public interest, there will be n o order as to costs. Annel M. Silungwe CHIEF JUSTICE M. M. S . W, Ngulube DEPUTY CHIEF JUSTICE E. L. ,S ,J.k~lc', SUPREME COU~T JUDGE