Kamba v AG (Civil Cause 1267 of 1993) [1994] MWHCCiv 26 (4 February 1994)

'R J , 1(. J'. i?AT. REGISTRY CI'/IL C1\U~'.t.: NO.1267 Of l993 BETWEEN : NELSON KAMBA .... . PLAT 1'1T T FF .. ATTORNEY GENFRA1, . . . • . . . . . . . . • : • • • '9 \ ' • ,.. • • • • • • • • • DEFENDANT CORAM : MWAUNGULU, f~ GlSTRAR Mwafulirwa, Coun ~el for th e Pla i ntiff Limbe, Co1,;.'lsel += .r Selem.::ini, Court ''lerk : he Defendan c· judgment in deL~•• j c This is an -'l;-" f) J .i -.:n , ,h ,,: O> c h2 Atto ;_·1 ,2y . ,meral to set aside . •0t. _,'.e -,f intern:: 1 1,. to defend ent ered ·n-:.e app ; ic.::..tion is on the sole a on t he 19th of No\, ,:'._nbec >)( ,:; , ground that the j\1 1.:; g n;cnL 12th of January. L9 9!'.i . what I expectec. _ ).1 an c :i..c: ed authority r ,, h er L:'... C.:· 11 asser tions that t ;-,,_~y •1:,·•c,,.' . is whet her the p~.-~:, n tiif h 0 in tended suit as is cequ ~re ~ oy section 4 of the Civil Procedur e ( Suits by and against G,ner ,'"!r1 1-2nt and Public Officers) Ac t:. That section provides as fol• . )WS: .:::orn·,f: -_:, ~·,·1,; '._: .. , (:!lJ, as th,~~· did, on g eneral .:.·:1e ~;: iestio ·. i rE. · erved ruli r,g becaus(•, cortLi:ary t o '.~.: li i~e l'.·::: should have· given n1 tice of l heard argumer , ,: on the ~~- ised b '. 7 the summ ons ·. Jas ~rreg,..1lar. : his r:.,n·.:, - i > ' . .:, \2 t. ::: r_ he Government, i_ ., ~, t:: ·:. t. c1 t ,~ d aga ins:- ,_~ r c:sc ect of c1 1y alleged "No suit s ha :..1 or against a pub ~ i c 0L" _; , __ e ,- in respec t.. of any act done in pursuance, e r e> ~cution, or i ntended execution of ~ny A _t ~1 other law, nr of any public duty or a..ith, , '.·ity, u Y i neglect or default L 1, t h.:~ execution :::.f any such Act, duty or authority: months next after , ,!~ i ,: i •· it the case of the 1,0v:r,;:--;, , at the offi - ~ of C~€ Ai t0rney Gene ~a i, and. in the case of a pu,:, :l.c c..c::icer, deli vereG to hin , .. , L" left at his office, stat i ng the cause of action, the name, description and pl~~e of resid en ~e of th ~ r l~intiff and the rel~.-~:- \JYiting has been, in ,: -3liver.cu to or '_ eft ;ntil tb2 expir~tion of two •. l •.1 ;rr, s. " ,\.-J--lL,_;1 ,-,,_, - · _,.,-- . J ,, L - - th e ,,t i •., r·ney Ge n e ral ·.:.. h a :: the not ice:: ~it: It is contended fo r given in every ca s e when~ g,uvE rnrr c nt is sued and, by exten sion, it. should have be e n given i r, this case . behalf of the pla i nti ff t h ut it shou l d not. practi ce has been t o giv e su e ~ notice in each case until when I, in passing, said the no ti ce need not be given in every case. Altho ugh the issue has not been d e cided on _ in our court s, it is a rich area of lit igaLio11 , ~s we sha l l see shortly. Betor e that, it may be irnpo rta n r t o l0ok at the facts so far. i t is contended on It looks lik e the The plaintiff too k o ut the c:J. C t ion o n:,,the 19th of Novemb er, It was commenced by what previous ly\w'as described as a 1993. generally endc:'..""sed writ. The endorseme nt i ,~. very brief. The plain tiff's claim is for terminal benefits and gratuity under the co ntract of service with the Ma lawi Army~ The plainti ff was, therefore, employe c1 i n oJ r ar med force s .:, ' · . No statement of c l~ im ~ as served was no notice of intenti c n to defend. therefo re, that th ~ plaintiff is s0ing pursua nce of a contract of employment . b e ca u ie., , I think, ther e It ectn be s -aid, the Attorney Gener al in Judgment in default or n0 ti c~ of intentio n to defend wa s enter ed on the 19t h of Nov 2mb~~, 199 3 . On plaintiff obtaine : a n a poo inLment for a ss ess:ne nt of damag es for the 9th of December , 199 3 . Assessmen~ of damages has not been done because of this application taken out on the 12th of Novembe r, 1993. t he sa me d a y t~e The applicatiot c o set aside is support~d by an affi davit of Mr . Limbe, State Advo c ate. It is deponed that the pl ~: ntiff never served the defenda0t with any notice of int e nded su i t 2r~ there by failed to comply wich the s pecific and clear require~ ments of section 4 of th e Civil Procedure (Suits by or aga inst the Government or Public Offi c e rs) Act . Mr. Lim be, a poea ring fer the J'. t torriey Gen era 1 , subm it s tha t there are no suit s wi1id--; are outside se ct iori 4. He s ubn, i Ls that all act s done by government must be under s to od and taken to be made in pursuance of publ ic duty. Equa l ly , fe r all torts and breac hes of contr a ct s c o~m ic~ e d by gover~men t or public off icer s no suit would lie without s ucl, Dotice. He ~ubmits that sect ion 4 encompasses all a ctions to which government or public officers are a party. Mr. Limb e 2 rgu ~d that the section wa s introdu ced because governme,·,t is a 20~ 1 _ _::s s o.l organ i s:1t~o n: it wou ld be to l i aise with its cl1 enL diffic ult for t h ? Atto rney C~r e ~al depar tments. Thi [ is wh y - rh ~ provision wri s passed. He al so arg ues that the c o urt s h o u l~ in constru ing the provision avoid absurdi ty. He cit ed the cas e of Ntrho Developments (Private) (M) 405. Limite d v. Mudi River Wn ter Be ard 1961-63) 2 A. L. R. ,ery Mr. Mwafulirw a. apy·ari~ g fur the p lai ntiff, argued that going by sec tion~ it se l i, it i s platitud in cus that the section was not to apply to e,· er v case. The appl ic ation, he submi ts is restric ted by the word s of th e s e ction. - 3 - Put concisel y tr c: · 11;' l,cat10n raise s two questions: d oes se c t ion 4 cover a l l cases wh e re t he Gove r nrn e rit or public of ficers a re to be su e d e nd whe th er, on facts of this part icular case , such a notice sho u ld La ve been given. the n to con s ider the s t~ t . 1 te itself and judicial pronounc e me n ts, whic h ar e many , tn a t h 2 v c ber:: :1 ma de on s imilar provision s . It is import ant The Civil Procedure (Suits by and against the Governm ent o r Public Officers) Act was pass ed in 1q46 . The preamble is very b r ief: "An Act Relating to :ivil Suits by or against the Government or Public Of fi -~ r s.'' Th ere i s not much assist a n ce f r om the preambl e o n th e question I hav e to a n sw e r. We mu st ~o ~ t o the section it s elt. On c l ose reading of th ~ s~c~ i ©n, i t i s p : ain f r om the ~0r d s .. c-'.:: ·,vc1s i:t t'e nded t o c ove r . a :·.l , acts of ·not i.. c e p,_c::-vio us · ta SL'i n g -· uit is in resp e ct c f acts "done in u se d that the se c t io n Go v e rnment or Pu bli c o f f ice i:- s. The mu s t be given wh e e th e pu rsuance, or ex ec ution, e r intend'ed e.xecution" of any Act or ot her law, or of a ny public duty or authority . . tf -acts ar e d o n e , even if don e by Gov en me nt ~r Publ i c Officers, ~nd are n ot in pursuance of er in exe cu ti on o r inte n de d execution of an Act or a ny other law, c::u tr,ority or duty, ' th e y are not covere d b y t h e st atute. The question is not whether t h ey '. w~re don~ by 2 pu bli c of ficer. The quest ion is whether the public officer -dici wh ;:a t h e d i d in pursu:Jnce i:: r execution or 'intend e d execut i on of an Act: , ot her law, public duty 0r authc rlt y. - ~ The precur so r t o tl :'3 c i ,_; il Pr ocedur e ( Suits by 0r against t h e Government or Public Off ice rs) Ac t is t h e Pu blic Aut horitie s Pro tection Act, 1 8 93, Un ited Kingdom. Th i s \ -J .::iS a st a tu t~ u. L ge neral application be fo r e 1 902 and, the re for e,· in force in Ma lawi till our Act of 194 6 . Th e Publi c Autho rities Protec tio n Ac t, 1893 only cove r ed p u bli c authoriti e s. g o vernment by the Crown Pr oce ed i ngs Act, 19~7, section 30(2 ) . It c an be assumed t hat wh eG our 1 946 Act was passed it t o ok a ccount of devel o pme n ts in t h e United Kingdom for our A~ t in o n e Ac t gave protection to p 0t1 ic officers a nd the governmen~ . J udicial interpr e tation o f v ery persuasive in ou r ~our t~ . t h 2~ e o rovisions by English cour ~s It was extended t o i s I think I sh ou ld state very cl e arly at the outset, in sp it e of the strong argum e nt ~ on b b half o[ the Attorney General, t h at t h e re should be a restrictiJ~ to th e interpretation of t ~e p ro visions. This i s suppc rted ~y superior courts in the Un i t e d Kingdom. 13 L. J. Vaughan William s sai d : In Lyle ~, v. _~-~) uth end-- o n - Sea Co~ por ation (1905) 2 KB 1, "Now, I do not think '.:hat it can have been the intention of the Legis i a tu re that e very act done by the corporation wh i c h w~ s intr a vi re s conferred by this Order should be subject to the protection afforded by this . ct . is done, not only ~n Dursu a nce or ex0cution, or intended exe c ut i o ~1, )t this I...ight Ra i 1 ways Order, judgment an act which J:n rny - 4 - but also in pursuan c e o ( al ] e x e cution, or i ntended execution, of some o bl i_'-,a t:i o 11 incu r red by a public authorit y vol un ta r ily h eyc n d them by t he Order , execution, or i nte n ued exe c uti o n , o f _t h e Order." t h e obl i g a t icrn ca s t u pon a ~ d c t d o ~ c in purs u a n ce or i ~ ~ OL This was in the Co Jr t of Ap?eal . . In the Ho u se of Lords, Lord Buc kmaster said in ~ r ad f o_~j_- ~~.£l!J?£ YAt i on v. My e rs (1916) 1 A. C. 242, 24 7: !· If th e se ct ipn st~od alone, and ' t o th ~' intr o ductor y "Now i t must be c o n ced ed that the Ac t applie s onl y to a defini te c lass of p e r sons and ~o a defi n ite class of act i ons. were constru e d with out re fer e nc e word s o f the s t a cut e , it would be wide enough to grant protecti o n to a ny person who wa~ acting in pursua nce of an a~pr opri a te Act of Parliament, but o n more than one oc r'.a sion th e· c o urt s have pointed out th a t this can n ot ·oe its ~ru e int er pretation ..... .- . While the pre a mbl e is n ec ess ar y th~s to cons~rict the meaning of th e pe rsons whom the statute is intend e d to protec t, the words o f the section themselves li mit t he c l a s~ of action, ~nd shbw that it was not i nt ended to c ov~ r e very ac t which a local autho r ity had power t o p e rform." law, or of any puhlic duty or a uthority, or i _n resp ect of The operative words in sec t io n 4 o f -t h e Civil Procedure ( Suits by o r against Gove r nment . O l Pu bl ic Office r~ ) require noti ce prev ious t o issu e to be _;; i ve n in respect -of "an act done in purs uance, or exe cu tion or intended e xecution of any Act or ot h e r any a lleged neglect or d e fault in the · execu t io n of any such acti du t y or authority. 1 1 Th e se are sim i lar wo rd s that have been used in t he Public Autho r iti es Pr ote c tio n A~ t , 1893 . clea r from the au th o rit ies th a t q ui t e a n um b e r of activ ities of gove rnment and pu bl i c of fic e r s aie protected . Not all, h owever, are protected. Gu idance hd s been provided by two decision s of the House o f Lords. Th e first one i s Br a dford Corporation v. Myers , which I ref e rr ed to e ar li er . and t h e other is Griff ith~ v. Smith (1941) A. C. page 170. opini ons o f the Lo rd Justices in Bradford Corporation v. ~vers tha t Publi c Off i cers) Ac t applies and only appli e s wh ere go v er ~ment or p ublic o f f icer s in per f orming ~ ~ at is c omplai ne d of a r e acti ng in t he dir e ct executior o r stat ut o ry l e gal or publi c dut: y er a u t ho r i t y. Lord Justic e Buckma s ter, th e Lo r d L:nief Jus 1: ice, s aid at pag e 24 7 ·. the Civil Procedure (Suits by and against Governmen ~-~nd i n te nded direc t executi on of a It i s v e~ y clear f rom the i s quite I t i s n0 t b ecau se t he ac t out ot "In o ther wor ds , 1 t which a n ac ti on a r ises is ~Lthin thei r pc wer that a public auth or it y en j oys t he be nefit of th 2 statute. It is because t ~e ac t is on e which is eit her an act in the direct exe c utL, n o f a s t a tut e , or in the d i sch a rge of a p ubl ic duty, o r t he e xercise of a publi c autho r i t y. l at ter words as 1 reg a rd the s e - 5 - t r; all - t ,e pub l i.c- alike or an mean i ng a duty owe,.' authority ex 2 rciscd : i; uai-tu:.lity w1. th regard to all the public. It c· ~ s un; 0 .s that there are duti,2s and authorities which arc not public, nnd that in the exercise or discharge of such duties or au t horitie s this protecti on d oes r.ct a~ply." When the matt e r ca me again before c he Ho use of Lords in 1941 in Griffiths v. Smith, Vi · r □ Ll nt Maugham sa i d at page 185: • i t i s not es sen tial that a " . . . . . . it h ~s been impossi~le to doubt (if it was doubtful before ) th a t public authori ~y s eekirtg to rely on the Act of 1893 must show that t he par~icutar act or default in question was done or committ~d in discharge or attempted di sc harg e of~ po si tive duty imposed on the public authority, it i s s uffic i ent to es tablish that the act was in sub stanc e done in the course of exercising for the ben~fi t of the publir:- an authorit y or a power c on fe rred on t h e public author ity n being a mere incia 2 ntal power, su~h as a powe r carry o n a t rc1 d e .. " t t o · · A~d for purposes or th e accio n h er e, i t 1 s ~dvisable to rec ord the observations of Lord Porter at , page 208 when he said : "I think it is tru e to s ay that ' a priv::ite contrar:t even if e n t ere d into i n pursuance of an Act of Parliament i s not t her eby protected but an act which is done in perf ormanc e of a public duty is still don e in the execut io n of a public duty though it is performed thro u gh the medium of a contract." In my opinion, ther e fore, a n d this is in derogation to the j udicial pr on ounc~me nts to the "effec t. arg ument by counsel for the Attor n ey Gene ra !, it was not the inten tion of Parliame nt to require a noti ce before issue in all c ase s against the gover n ment or public officers. The sect ion itsel f limits the circumstanc es in which it should. Ther e are also very persuas i , e Admittedly, government i s a co lossal establishment. impo rtant, therefore, that adequate not i ce should be allo wed to it before proceedings are cornmeric2d a ga i nst it. I don't think, however , that there is a ny ~bsu r dity in limiting the situati ons in wh ich such not i ce s houl J be given . thin king that it should ap;:i ty in all cases in cluding acts which are incidental to government or public duties. in re quiring notice where, for exampl e , the act s complain ed of are in the direct execut io n o f a s tatut ory le~ al 01 public du~y . I~ wo uld be prep os terous t0 c2~0ir e, fo~ examp l e, a n y retailer wh'.o has sold ::wo bottles of F anta or coke t o public officer · o i~ government or a publi c otricer refuses to honour the contrac tual oblig a tion. to give prior ~otice to gov ernment I s ee mor~ absurdi ty in I see mor e se nse ov e r nmcnt o c a e re qu ire , It is It i s for this reas o n that the courts have been mo r e ready In ma ct2rs ,, f t o re quire such a n o tic e in tort and ha v e been ve r y r e lu c : ant to a ctio n s in contract . t ort, there is a plet hor a of author itie s in th e United King d o m o n th e construction of the p a rtic ul a r wording and t h e qu 2st i ons of construction of t he p a rti cu lar word ing ha v e not be en re duce d b y t h e n ew s t at u t e . That i s wh y Vi s c ount Ma u g h a m in Gr i ff it hs v . Sm i th observe d at page 181 " I n other r espc::: ts the l a nguag e :., f se cti o n 1 of i..h c: :\ ct of 18 9 3 is rep rod u c ed s o t !~a t th e di f fi cult qu estions o f const ruct io n wh i c h cons t an tl y a r o s e in the Ac t continue to a rise except so fa r a s have b een s e t tle d t y a u t h orit y." In rel ati o n to torts, there fore, t h e situ 2 t ;on contra ct. i s flui d a n d OReh. Not so in In r e l a tio n t o prO C-:! edin gs \ [ o r ~re a c h o f c o i;itra ct., the i n the j u dicial ' pronoun cem e nc s g e nera l c onsid era tions expte s s e d Th e sta~t i~g point is pr o b ably a r e o f p a rticul ar im p orta n c e . the c ase of Clark e v. Le wi s ha m Bo r ough J1902) 1 LGR 63. This r e por t do es not a ppea r i n our library: r T,he case is, however, cite d in Pre ston & News o m~ Limitation ' 6( Actions, 3rd Ed ition 1 9 53 ¥ a ge 202. wrong ul d is miss al . employe r fo r bre ac h of a serv ic e co ntract . Bi ng h a m said th at "go o d sense , 1s well as a uthorities, s h owed that the Ac t, tha t is t o say , the Public Authorities Pr ot ecti o n Act, was n o t int e nded to a 9 p : y to action s for damages f or bre a ch o f contr a ct a t al l ." So i f for thi s pa rticul a r cas e , just me nt ioned. In that c ase the Rction, much like here , was f or Tha ~ i s to s ay, th e claim against an t her e is need for direct a ut horit y In that c a s e Justice i s the case tha t t h er efore, l t I h av e Th e ma tter came agEi n be for e a High Court judge in Sharpi ngt o n v. Fu lham Guard i ans (1 904) 2 Ch. p a g e 449. In tha t c a se th e g u a rdian s o f a p u bl ic school e mploye d the plai ntiff ro do wo rks for them requir e d of them by their public d uti es. The a ctio n the r e was fo r bre a ch of contrac t . refus ed t o f ind th e Act app l ie d o bser v ed tha t authori ti es p erf o r m ma n y f u n c ti ons ~ h ich comp el th em tc e~ te r al l so rts of con trac ts. He , ~oweve r, sli g h te d coun se l' s a r gume nt tha t ev er y cont ra c t entered into by a publ i c b ody is wi thi n th e Act. At pa g e 455 he said: in t h is mode.c :, .:ig;'" go v ernr1e n t a n d pu lie Justice Fa rwel l ~ ~ t o private co n t ra c t 3. "" '_'Bu t e v e ry ~o n t ~a cj ,J ~nt e red into b ~ a P:1bl i~ b o dy is n ece ss a rily 1n ~ ~~ n s e enter e d i nt o 1n di s ch a rg e of a pu blic dut y ~~.und~r statutor y a uthorit y , for · ot h erwis e it wo uld Q~ p J ::: ra vi re s. And I th i nk it wo ul d n e c e ss a rily f ol lb~ , if I dec i ded in the d efe n da nts' favour, ~h'a t e ve ry contract entered int o b y a p ub li ~ authorit y •i s a ~ ac t do n e i n p u rsu 3 nce sf a pub l i c duty or a uth or i_ t y, and th erefo re i s nne t o wh i ch the Ac t ap p l i s . th e li n e . " ·I do n o t s ee wb e re to d rctw On the fact s of th e p a r t ic ui ;:. c,. c a se, how e v er, he s a i d: In order to carry out this duty .:, eern .:; to m-: quite dif :·: ere:nt. The "The present cas e public duty which is h ere cast upon the guardians is to supply a receiving house for poor children; a breach or negli 6 ent r~~forrnance o f that duty would be an injury to the children, or possibly to the public, who might be injured by finding the children on the highway. they have power to build a house or alter a house, and they accordingly er, ~ered into a private contract. It is a breach of this priva t e contract that is complained of in this acrion. It i s not a complaint by a number of childr e ;1 or by a mem ber of t the public It is a,complaint b y in respect o f th e public d~ty. a private individu 2 l in res¢~ct of a privat e injury done to him. ~ he only way i~ which the bublic duty comes in at all is, a s~ have pointed out,. that if it were not for the public d~ty any such contract would be ultr a vire s . But f hat would apply to every contract. this particular contract comes within the Act. I think it is c lear t h at·what is , complained of is a breach of a private duty b y th~ guardians to a private individual. The re ult is that, so far as this section is conc ~r~ ed, [he action will lie." I cannot f tnd any ground for saying that The matter went up before t ~e Court of Appeal in Lyles v. Southend-on- Sea Corporation. Th~t action was proceeding in contract. The Court of ;,pp~al d f cided that it was essential l y in tort and therefore thr Act ap l i ed. The Court of Appeal, however, doubted what th~ situa t ·cn would have been if there were conditions on the contract. P. 212, the plaintiffs, the Ipsw"ch Dotk Commission, wanted t o plead the Act to a coun t erclaim. There was power under the stutute to do what they wanted t into a special contract to perfo m it. statute did not apply. Bradford Corporation v. My e r s at page 251-252: do but they chose to enter Ic was held that the ~uck~ill, J. quoted Lord Haldanes in In The Ronald West (1937) "My Lords, iD the c ~ se of sch a restriction of ordinary rights I think that the words used must not have more read into them th n they express or of necessity imply. An d I rlo at think that t~ey can be properly extende~ sc as o embrace an act ~h~ch is not don e in dire ~ t pursuance o f the provisions o f the statute or in the direct execution o f the duty or authority." I_ Justice Buckmill went on to quote the words of Lord Haldane in Sharpington v. Fulham Guardians ~ t page 449: "I think that: this is a Act which .does restrict the rights of an indivi ual in suing somebody himself who has d one him B wrong and one must read the words of the Act strictly. as I do in this case, tl a t the n egligent act If I find, L done by the plaint if f s ¼~ s net done in direct pursuance of the pr o v .i si,ons d: the statute or in the direct ex e cut i on 0~ thei 1 duty or authority, but was , in fact do n e ~nder a contr a ct ma d e between them a nd someone else, . . ...... I think that the provisions of the Act do not apply." I would hol d, t herefo ~e . w~ en applying the Ci v il Proce dur e (Suits by or against Governmen t or Publi c Officers) Act i~ relation t o cont racts t~at ~he notic e be f ore suit is not require d in respect of co nt racti ~~etween government and public officers and priv& te citizens exc~pt in so far as the acts (and n6t incidental) pursuanc e of complai ned of are i n d~ r ec t the statutory or public d ut y o r Dut horit y a rid the contrac t is the only way in whi c h s uch stat~tory or p ublic duty is fulfilled . observa tion s of Lord Jus t ice Porter in Griffiths v. Smit h at page 208 which I sho uld re -auote: In th ese sentimehts I am in agreement with t he "I think it is true to s.::-iy that a priyate contract, even if entered int o in p ~r sua nce of an Act of Parliament , is not thereby pro tect ed but an ac t which is done ~nde r p er formance of a public duty is still done in t h e exe cuti on of a publ i c duty for its p erfo r ma nc e through the me d i um of a c ontract." In this p art icular case, t~e p l aintiff is s uing in relati on to a service c ont ract. He is s ui ng for terminal benefits and gratuity under a cont rac t of service with the Mali~i Arrr y. He is not alleging that the Ma l a wi Army is in breach of any statutory or pub lic duty. He is sa y i ng that in the priva t e contra ct wi th him , the Army has n ot paid him terminal benefits and grat uity unde r. the c on tra ct of s e rvic e . He compla ining together with members of the public generally against th e Army. He wan ts the Army to pay to him what is due t o him priva tely under the contract. think tha t statutory or publi c duty or an Act of Par l iament. My opinion, therefore , is that the not i ce was not nec essar y and the judgment was not irregular. This being applica ti on is reli ed, the application i s dismissed with costs. I would be very sl ow to the Army's d e f a ult in this ca se is default under a t he only gr ound on which the i s not MADE in Chambers th i s 4th day of February 1994 a t Blantyre.