Godfrey Miyanda and Anor v The Attorney General (2005/HP/0224) [2005] ZMHC 1 (5 May 2005)

2005/HP/0224 GODFREY MIYANDA STEWART NKANDU and 1st Applicant 2 nd Applicant THE ATTORNEY GENERAL Respondent ( For the applicants - in person Mrs C Tembo, Senior State Advocate, for the respondent Tamula Kakusa, J . Thursday, May 5, 2005 RULING Authority cited 1 . In re North Ex parte Hasluck (1895)QB 264, 269 '- Legislation referred to: ( The Interpretation and General Provisions Act Cap 2 SS 2, 19(1) (b) and 35 The Local Government Act, Cap 281 ss 88 and 89 Work referred to: The Interpretation of Statutes, Wilson and Galphin, 11 ed. at page 1 2005/ Hl'/0224 Rl This is applicants' preliminary point of law which arose from facts which follow. Background: s 88 of the Local Government Act, Cap 281 vests in the Minister of Local Government wide discretionary powers as, in the language of that section under subsection (1 ): "whenever, by reason of the refusal, failure or inability of a council adequately to discharge all ~ or any of its functions, the Minister considers it necessary or ( expedient in the interest of local administration to do so .... ," the Minister may appoint a Local Government Administrator, suspend all councillors and, where applicable, exercise further powers under s 88(1) (b )(ii) which may result in the dissolution of the council subject to compliance with s 120 of the Act and the President's approval. In exercise of these powers the Minister suspended the Kabwe \ Municipal Council under Statutory Instrument No. 97 of ·2004 of ( Thursday, November 18, 2004. On February 15, 2005, the applicants in person, whose interest is not in issue, instituted this action for judicial review - 0 .53 RSC 1999, praying for interalia, orders of certiorari, various declarations, etc, ?005/HP/0224 R2 f l I I I I I I I suffice to say the reliefs sought, as I hope will be seen shortly, need not be recited in any greater detail given the course the hearing took. The two appHcants moved the court to determine a preliminary point of law and it fs this:· they contend that by virtue of s 89(1) of the Local Government Act the suspension of Kabwe Municipal Council expired as the council was suspended on November 18, 2004, the ninety days allowed by statute ended on Wednesday, February 16, 2005, without any extension. It is an interesting and perhaps debatable point of law and fact, probably mainly of law. By statutory instrument No 97 of 2004 published on November 18, 2004, the Minister evoked s 88 of the Local Government Act which reads: "88( I) Whenever, by reason of the refusal, failure or inability of a council adequately to discharge all or any of its functions, the Minister considers it necessary or expedient in the interest of local administration to do so, he may, by statutory order - (a) appoint a public officer to be the Local Government Administrator for that council; and (b) notwithstanding anything contained in this Act - 2005/HP/0ll4 R3 ( ( • l ( ( (i) suspend all councillors of the council from performing all of their functions as councillors and empower the Local Government Administrator to discharge all the functions of the council; and (ii) after due inquiry held under section one-hundred and twenty; dissolve the council after receiving prior approval of the President, and direct the holding of elections within ninety days from the date of the dissolution. (2) Any functions of the council discharged by a Local Government Administrator under subsection (1) shall be deemed to have heen discharged by the council in accordance with this Act. (3) The Local Government Administrator shall relinquish office upoh the lifting of the suspension or the election of a new council, as the case may be." I /' I I i I I l I l These ·powers, subject only to subsection (1) (b) (ii) and s 89, are only exercisable for periods of ninety days at a time but, s 89(1) further provides: "An order made under s 88 shall, unless sooner revoked, expire after ninety days from the date of making thereof: Provided that the Minister may, if he considers it 2005/HP/0224 I , R4 desirable in the interest of local administration, extend the order for further periods of ninety days at a time." Pursuant to ss 88 and 89 of the Act the Minister, as already stated · earlier, suspended the Kabwe Municipal Council on November 18, 2004 vide Statutory Instrument No 97 of 2004 and, which is the event in issue, the Minister by Statutory Instrument No. 22 of 2005 and published on Friday, February 18, 2005, re-appointed the Local Administrator who was appointed in the earlier statutory instrument for a further period of ninety days. I I I I i I The applicants' arguments are briefly that Statutory Instrument No. 97 of 2004 which was only valid for ninety days expired without extension and any purported extension ought to have been made before the suspension expired. The arguments, I would say, centre ' on the applicants' contention that in computing ninety days the effective day is the date of publication i.e. November 18th and that if this is accepted, ninety days expired on February 16, 2005. For the respondent, going to the gist of the matter, Mrs Chanda Tembo, senior state advocate, it was argued that since Statutory Instrument No 97 of 2004, was published on 19th November, 2004, by l I I I I I I I ) f ! I i l 2005/HP/0224 R5 ( '-- ( --- ; ( virtue of s 19(1) (b), quoted below, of the Interpretation and General Provisions Act, Cap 2, this statutory instrument came into force on the 20th of N9vember, 2004. Section 19(1) (b) reads: "every statutory instrument shall be deemed to come into force immediately on the expiration of the day next preceding the date of its commencement.,, The learned senior state advocate urged the court to accept that Statutory Instrument No 97 of 2005 lawfully extended the suspension of the councillors and the court was further invited to rely on s 35 of Cap 2 in computing whether or not the first statutory instrument expired before extension. For quick references 35 reads - "Part VI General Provisions Regarding Time and Distance In computing time for the purposes of any written law - .. (a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done; (b) if the last day of the period is Sunday or a public holiday (which days are in this section referred to l I: 2005/HP/0224 R6 as "excluded days") the period shall include the next following day, not being an excluded day; ( c) where any act or proceeding is directed or allowed to be done or taken on a certain day, then, if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; ( d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time." The applicants say, which I find very persuasive, that Cap 2, the Interpretation and General Provisions Act only gives general guidance when or where necessary; the court must first look at the Act or legislation and ascertain the intention of each statute. In this regard reliance was placed on the reasoning in In re North Ex parte , Has/uck where Lord Esher M. R., at page 269 held the view that there was no general rule which existed as regards computation of time. His Lordship said: " ... Either under the Bankruptcy Act or any other statute, or, indeed, where time is mentioned in 2005/HP/0224 R7 i I I i ( ( contract, and the rational mode of computation is to have regard in each case to the purpose for which the computation is made". It appears as if wben Cap 2, the Interpretation and General Provisions Act is called in aid, one must not ignore s 2 (1) of the same Act which reads: ( "The Provisions of this Act shall apply to every written law passed or made before or after the commencement, unless a contrary intention appears m this Act or in the written law concerned." The foregoing expressly permits or compels the court to look at the relevant statute first. It follows therefore, one can argue, that s 35 must be read subject to s 2(1 ); s 35 only assists or is only applicable where the intention in the statute is not clear. Generally speaking, there is a golden rule, see the Interpretation of Statutes, Wilson and Galphin, 11th ed. at page 1, where the learned authors write: "A statute is the will of the legislature, and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded 2005/HP/0224 R8 ; ;, i i >I ·'. ' ; 'according to the intent of them that made it'. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those - words in their natural and ordinary sense, the words the~selves in such case best declaring the intention of the legislature.,, The facts are common cause. The Kabwe Municipal Council was suspended on November 18, 2004, that clearly is the date when the Administrator lawfully took-over and actually commenced to execute the functions of his office. The councillors, as a matter of logic and sound common sense simultaneously lost their authority. I cannot see any other sensible interpretation, at least now, except to hold that the suspension was instant. On reading the statutory instrument of November 18, 2004, all law abiding councillors vacated or ought to have vacated office as any councillor purporting to carry out any official duties on that day would have, in my view, acted without authority. It follows therefore, that ninety days are to be computed from November 18th i.e. inclusive of this day. Further, which is significant, the language in s 89(1) is explicit, in part it reads - "An order made under s 88 shall, unless sooner revoked, expire after ninety days from the date of making thereof ... ,, 2005/HP/0224 R9 Thus, the Act speaks of the date of the suspension and the date of suspension is 18th November. When the Act talks of the date and the i I I I date is specified as herein on the face of the document, I have no difficulties in accepting that date as the effective date. On the foregoing, the purported extension fell outside the purview of the Act: Statutory Instrument No 22 of 2005 did not extend the earlier suspension. The point of law raised is upheld. I would make no order as to costs. In this court, the point was almost novel. Leave to appeal is granted. Tamula Kakusa, J. Thursday May 5, 2005 J.005/HP/0224 RlO : I I I