Wisamba v Makayi (HP/EP 12 of 1979) [1979] ZMHC 33 (14 September 1979)

WISAMBA V MAKAI th© opinion that greater punishment is called for than he has power to £nipose) inapplicable to cases which attarct statutory minimum sentenced and that therefore only Senior Resident Magistrates and Resident Magistrates had jurisdiction to try cases in respect of which Mandatory minimum sentences should be passed. The Supreme Court in 5 Mapowd (1) adopted that decision and found that the purported trial in the magistrate’s court in that case was a nullity. Mapowa (1) i$ to be distinguished from the present case for the simple reason that here the accused are first offenders and, therefore, not liable to the mandatory minimum sentence. It follows that the conviction was 10 competent as. the? convicting court had jurisdiction to entertain tho proceedings. The case record will now go back to tho trail magistrate for him to deal with tho question of sontonco as ho dooms fit within his powers i In conclusion, I wish to make it clear by way of emphasis, that all 15 magistrates have jurisdiction to try cases involving tho theft of stock or motor vehicles in which accused persons are first offenders; but that only Senior Resident Magistrates and Resident Magistrates have jurisdiction to try such cases whenever a statutory minimum sentence is imposable. Tho judicial circulars already referred to are merely advisory; they wore 20 obviously bom out of the danger that lies in allowing magistrates class III—I to entertain these cases but only to discover later on that they lack jurisdiction because the accused person has a previous conviction for a similar offence.. Until a change in the law occurs, public prosecutors will need to take 25 before magistrates- class HI—I only those accused persons believed to be first offenders. The one feature that causes some concern is that Senior * Resident Magistrates and Resident. Magistrates will bo in a position to assume that accused persons appearing before them chargod with any of these offences, must,have at least one previous conviction for a similar 30 offence. This, flies right into the face of tho concept of fair and impartial administration of justice; It is to be hoped that the legislature will see its way to an early amendment of the law; for instance, s. 217 of tho Criminal Procedure Code could be amended to make provisions for mandatory minimum sentences. Order accordingly J KAPANGO BWANGA JEFFREY WISAMBA v MATHEWS McKAY MAKAYI HIGH COURT CULLINAN, j. I4. TH SEPTEMBER, 1979f'‘ 1979/HP/EP 12 ®ec/ion petition - ^t^ii - Counting of - Necessity for returning officer to attend proceeding#‘continuously. , 29$ THE ZAMBIA LAW REPORTS pedion petition “ Votes ~ Recount of. Tlie petitioner a candidate in the final election for. the Kalengwa Constituency applied to the High, Court for a declaration that the res-. pondent was not du y elected. He based his petition on the ground that the returning officer did not attend the counting continuously but had. <rone to sleep leaving^ the counting to his counting assistants, secondly that the returning officer wrongfully rejected the petitioner’s request for the recount of the votes. Held: (i) A returning officer must give the proceedings his continued ' supervision. (ii) A returning officer has no power to conduct a recount and once he has read out the Declaration of tho Result of the Poll form declaring a candidate duly elected, ho is functus officio in tho matter of recount. (iii) Before the returning officer declares a candidate duly elected ’ he must inform the candidates tho result of the poll and give ’ them reasonable opportunity to request for a recount to be • conducted. (iv) Under s. 19 of the Electoral Act a petitioner may apply to the High Court for a “scrutiny” to be carried out, this enables the court to inquire into the validity of the votes cast, and determine the number of valid votes cast for each candidate in respect of which the application for a scrutiny is made. (v) Although the Act does not provide for a recount, there is a* common law right in the matter and this is done by way of interlocutory'summons supported by affidavit before the trial of the petition. ' (vi) A recount, does not provide a relief but is merely an inter­ locutory proceedings which clarifies the situation and enables ' the court at the hearing of the petition to come to a decision in granting relief under s. 28 of the Act. Legislation referred to: Electoral Act, Cap. 19, ss. 17 (2) (6), (c) and 19. Electoral (National Assembly Elections) Regulations, Cap. 19, regs. 64 (1), 70 (3). Gases referred to: (1) Lusaka v Gheelo (1979) S. J. Z. (H. C.) 128. (2) Mkandawire v Lloyd (1979) S. J. Z. (H. C.) 195. (3) Stephney Division, Tower Hamlets, Case, Issacson y Durant (18»6) » .. 4O’M&H34. 1 * Rarvanambulu of Sfazmfyana .and Co, for the petitiqner. & Banda, Jaques and Partners, for the respondent. © WISAMBA V MAKAI C*ULLINAN|Ji • The petitioner and respondent were candidates in . election for the Kalengwa Constituency held on 12th December, On the Hth December the returning officer declared the respondent J^Sve been duly elected. The grounds for the petition are based on the provisions of s. 17 (2) and (o) the Electoral Act, Cap. 19, which reads as follows: “17. (2) The election of a candidate as a member shall bo void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say:. (b) subject to the provisions of subsection (4), that there has. 10 been a non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the7- principles laid down in such provisions and that such non- compliance affected the result of the election; (c) that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election agent or of his polling agents;” With regard to the latter ground the petitioner alleges that: “the respondent had during the said election offered a gift namely a bicycle, to one Nkumbula, a voter in the said election so as to induce the said voter to vote for the respondent and that by reason of the said act your petitioner states that the respondent had committed a corrupt practice”. The petitioner gave no direct evidence on the allegation. The res- ! pendent testified that Mr Nkumbula was a relative of his whom he had [ appointed as his election agent. He. had lost the services of ^Mr Nkumbula £ during the elections because at some stage he had been remanded in prison.for about, a week. The respondent was unable to indicate the 30 ; charge upon which Mr Nkumbula had been remanded. Considering that ; Mr Nkumbula was at once his relative and his election agent and that the respondent, had attended court, though briefly, on one occasion, I consider his evid0'ceuiirealistic, and it seems to mo that he was somewhat evasive on the point; Nonetheless there is no conclusive evidence in the matter 35 before me and I4m hot. satisfied that if a bicycle was'ever given to Mr.; Nkumbula, it ^as given fpr the purpose stated in the petition. In any: Invent, although the learned counsel fop tho petitioner, Mr Kawanambula>; view of the judgment of. this court in tho case of Lusaka v Gheelo (1) made learned submissions on the contents of reg. 74 (1) of 40 F-e Electoral (National Assembly Elections) Regulations, and in particular paragraph (c) thereof; I Have not changed from the view vyHicIi I formed C that case: in my view the regulation does not concern property other |han money as such, except in paragraph (h) thereof. Indeed my view in .. fatter has been confirmed by sight of the provisions of s. 26 of the 45 Illative Council Ordinance 1925, Gap. 19, 1930 edn where the words I ouey. or Valuableconsideration’* appear. The ^provisions remained1 s * THE ZAMBIA LAW REPORTS were ,repoatod unchanged up to the 1956 and, 1957 edition . of the. Ordinance-^ s, 30, Cap. 2, 9o edn. In 1958 a new Ordinance, No; 36 of 1958 was 19g3) introduced. The P™™ons_som^^ Act—sec s. 88 of Cap. 2, 1959 edn—-but the wordy “or valuable consider^'; tion’ were not repeated. Thereafter tlirough successive legislation the provisions of s 88: were repeated up until the present reg. 74. It may well be that the 1958 provisions were modelled on the United Kingdom^ legislation in 1949 and that a lacuna arose in not giving tho word money an extended definition. In any event the legislature saw fit not to repeat the words or valuable consideration” and I can only conclude that the present regulation does not cover tho giving of a bicycle. Evon if in the circumstances it could be said that the giving of a bicycle in this case was “misconduct” for the purposes of s. 17 (2) (a) thqro is absolutely no evidence to show that thereby tho majority, of the voters may have been prevented from electing tho candidate they preferred. pleads that: In support of the ground under s. 17 (2) (b) of the Act tho petitioner .:'; “(i) The procedure adopted by the returning officer during the ' counting of votes whereby tho returning officer left his functions of counting and/or supervising the counting of votes to the counting assistants while ho went to sleep during the counting was irregular; . i (ii) The returning officer had wrongfully rejected the petitioner’s request for the re-counting of votes having regard to his absence : 7 during the time when counting was being done while he was sleeping and accordingly the petitioner states that the returning '5^/^ officer’s said refusal was unreasonable.” > < ; * d J S The petitioner testified, that the count in the National Assembly election commenced at 2200 hours on 13th December, 1978, after they y count in the Presidential election had been completed. At 0200 bourse on 14th December the returning officer left the counting table and went; asleep leaving his assistants with one in charge, presumably an assistant^ returning officer, to complete the counting. The counting was completed^^h^^^ at 0430 hours when the assistants woke the returning officer and supphedj him with the figures in respect of tho ballot papers counted’whiles slept. After entering and adding up those' figures in the Record of Prc^:g^ cwdlngs at the Count the returning officer instructed the candidato^^^^ggg and their agents to leave the counting room as he wished to pubHclyA. .;^'^ declare the.result, Of the poll outside the room. The result was declared;^ about 0600 hours aS^ follows: • 4 544 votes- The respondent 3 986 votes The petitioner Rejected ballot papers 335 votes r 8 865 ballot papers. . ' Jr The returning officer therefore, declared the respondent to have been. duly elected Thepetitioner testified that hathen required the.returning" " § * 10 20 30 10 WISAMBA V NAKAI officer to have the votes recounted but the returning officer refused. The respondent testified that the parliamentary count commenced sometime after 2100 hours on 13th December and concluded at 0530 hours on 14th December, the result being declared at 0600 hours. He c had not at any time seen the returning officer sloop. He admitted however 5 that he had lei t ie counting room twice for a period of one to two hours just before midnight and again at 0200 hours returning at 0400 hours. The returning officer was awake when he returned. The returning officer denied ever having slept during the count, <a He testified that he visited some four polling stations on polling day on 12th December, 1978, and thereafter waited at Chizora Boma con­ ference room, whore the count was to be held, for tho arrival of tho ballot boxes. All the ballot boxes wore received by 0130 hours on 13th December when counting in tho Presidential election commoncod. That count concluded at 1530 hours on the same day and tho Parliamentary count commenced shortly after at 1605 hours, concluding at 0400 hours on 14th December, the result being declared at 0430 hours. It will be seen that the above timings are at variance with the evidence of both tho petitioner and respondent in the matter. They testified that tho Parliamentary count commoncod between 2100 and 20 2200 hours. No doubt they were anxiously awaiting the commence­ ment of the count and it seems unlikely that they are both mistaken on the point. The fact that the returning officer puts the time at 1600 hours could indicate an imprecise recollection of what transpired at the Par­ liamentary count due no doubt to nothing short of exhaustion. Furthermore the returning officer testified that ho concluded the count at 0'400 hours and declared the result after some thirty minutes. Both thafp^titioner and the respondent testified that the result was not declared- until about 0600 hours. However for the reasons already in- dicated I accept their evidence on the matter. The returning officer was obliged under regs. 68 (4) and 43v of the Electoral (National Assembly Elections) ■Regulations to complete Forms NAE 10 and 11 respectively namely^ .the Statement’ of Rejected Ballot Papers and Declaration of the Result of zthe Poll. I cannot see that it would take the returning officer some two hours,to complete such forms. Tho non-statutory form Count, whidh according to the returning Recqr^^ officer5 was gradually completed during the count, required only to he totalled. The' delay ^between the end of the count and the declaration of the result indicates that riiuch remained to be done, and tends to support the petiiipnfcr^^ There is the aspect* that; the petitioner made no complaint in the had stood for Parliament, informed by the returning, officer that doubt ^iyin^ - effect' to the1 instructions in paragraph 11 & interrupt’’. Here the returning. & matter^ but,thenylW and heztestffied' thaK-li^ “you are offi cer was W of the Elbdtipn O^ 1978 which reads: allowed to witness $ & THE ZAMBIA LAW REPORTS each Step but MUST NOT be allowed to interfere ceedings. This they must be told;” with the pro- There is a good deal of difference between interfering with the nroceedings and interrupting the proceedings to make a valid objection * here there was an obvious non-compliance with the regulations, j cannot see that there is any purpose in allowing persons to attend the count under reg. 65 unless they are entitled to raise a reasonable objection if and when tho necessity therefore arises. Regulation 69 for example provides that a returning onicer s decision “on any question arising in , respect of any ballot paper shall not be questioned except by an election h ? petition”. That phraseology suggests that until a returning onicer makes his decision on such question he is open to reasonable representation in the matter. It seems to mo therefore that to inform candidates and their agents that they may not “interrupt” but may only sit and observ’d the count is too rigid an interpretation of tho regulations. I can well understand that under the circumstances tho pctioner felt somewhat inhibited in the matter. The returning officer and his staff must have been exhausted. After the excitement and stress of polling day when polling stations opened at 0600 hours and the returning officer was obliged to visit a number of' stations, there followed the preparation of the counting room at the Boma at 1600 hours and the long wait thereafter for all of tho ballot boxes to arrive. Then followed the care and concentration of two suc­ cessive counts throughout two successive nights. The returning officer testified that he remained at the Boma from 1800 hours on 12th to 0400 hours on 14th December, some thirty-four hours. The electoral officer apparently kept the returning officer and his staff well supplied with . refreshments, including strong coffee. Nonetheless, taking into account ♦ the early start on the morning of 12th December, the returning officer’s own evidence indicates that by the time/the result of the parliamentary election was declared ho had then gone without sleep for some forty-eight hours. Taking into account the excitement, stress and strain throughout that period I have no doubt that the returning officer and his staff were exhausted and are thoroughly deserving of the court’s sympathy in the matter. . ' v- It is for those reasons that I consider that the petitioners evidence bas a ring of truth about it. Further, if the returning officer did fall asleep then it could well be that his recollection as to whether he slept at all g much less of the duration of such sleep could hardly be regarded as being || clear and therefore reliable. The* petitioner and respondent had at least slept on the night of 12th December and their recollection of events on the night of 13th December would obviously be sharper. The respondent admitted that during the period that he left the counting room—a total of three to four hours I calculate—the returning officer could well have slept. Again the returning officer testified that it was the petitioner who left the room shortly before the end of the count: ho did not see the. respondent leave at all. This is clearly contrary to the evidence of the respondent ^himself and I can only conclude that the returning officer’s g < 1 .. r 10 20 30 , / 45 WISAMBA V MAKAI recollection of the closing hours of the count are hazy indicating that h« U asleep. Suffice it to say that on the totality of the SSE the petitioner’s evidence on the point. Regulation 64 (1) reads as follows: officer each constituency in which ‘/H10 a poll is taken shall arrange for the counting of the votes to take place as soon as practicable after the close of the poll and shall as far as circumstances permit, proceed continuously with the counting, allowing only a reasonable time for refreshment until the count is completed.” In the present case the returning officer did not “ proceed continu­ ously with counting” though the assistant returning officers and counting assistants did so. The phraseology of reg. 64 (1) quite clearly places the responsibility for the conduct of tho count on the returning officer. The terms of regs. 67, 68 and again 69 confirm that view and indicate that r the returning officer must give the proceedings his continued supervision. > If As I see it therefore, there was a non-compliance with the regulationsu II arising out of an omission by an election officer in breach of his official 4 duty. | As to the returning officer’s refusal to conduct a recount it will be seen by the provisions of regs. 43 and 70 that the latter had no power to conduct a recount at that stage. Once the returning officer had completed and read aloud the Declaration of the Itesult of the Poll form declaring the respondent to have been duly elected, he was functus officio in the matter of a recount—see Mkandawire, v Lloyd (2) at pp. 196/197. As I observed in that case however reg. 70 (3) in effect provides that the returning officer should not proceed to read out the form in public until he has given the candidates a reasonable opportunity to require a recount to be conducted. It seems to me that such provision is of no avail to candidates unless they know what the result of the poll is. The returning officer ip the present case testified that the candidates were in a position to know the result from watching the count. That is not sufficient. It will be seen from th.e provisions of reg. 68 (4) that candidates may copy the Statement of Rejected Ballot Papers. As I see it the only reasonable interpretation;to be placed on the regulations as a whole is that the returning officer must inform the candidates of the result of tho poll at some stage before he proceeds to declare the official result, that is to declare the candidate with the majority of votes as having boon du y - elected by reading the Completed form aloud in public. I am satisnea ’that in this respect there was a non-compliance with the regulations in. this case* ! it I am quite satisfied that the election was otherwise conducted in t accordance with the principles laid down in the Act and substantially ,' in accordance -with'the provisions thereof. The question arose as to : Whether the returning officer’s lack of supervision m the closing hours affected the result of the election. I considered that the only way to decide W,question was by way of re-count so that not alone would justice be done bill would bo seeii to be done. ' * । 10 20 30 40 * I 1 ■ * THE ZAAIBIA LAW REPORTS Section 19 of the Act provides that the following reliefs mav be ° eueis may be claimed in an election petition namely: (a) a declaration that the election was void (b) a declaration that any candidate was.duly elected. The section also provides that “in addition to the foregoing reliefs a petitioner may apply to the High Court upon the trial of an election petition for a scrutiny to be earned out”. The present petition contains a prayer for a scrutiny. The purpose of a scrutiny, however, as is ex- emplified by the provisions of s. 19 (3) of tho Act, is to determine the validity of certain votes where objection is subsequently made thereto e.g. where votes were allegedly cast by persons who were not registered as voters. Section 19 (4) however reads: “(4 ) In this section, “scrutiny0 means an inquiry as to the validity of the votes cast, and includes tho determination of the number of valid votes cast for each candidate in tho election in respect of which the application for a scrutiny is made.0 Those provisions seem to me to embrace, apart from a scrutiny per se, no more than the determination or the fixing of the number of valid votes cast for each candidate, after tho question of validity has been established, without necessarily recounting those votes not chal­ lenged. For example if say ten votes for a candidate were on a scrutiny found to be invalid, the total number of votes cast in his favour declared in the official result would then be reduced by ten without the necessity of physically recounting the remaining valid votes. In any event such determination is a consequence of th© scrutiny itself. It does not con­ stitute a recount as such. As I see it indeed the Act makes no provision * for a recount. Tho Representation of the People Act, 1040 of the United Kingdom makes no provisions for seeking a recount by the court. It seems however that there is a common law" right in the matter and that the practice has grown up of seeking a recount by way of interlocutory summons supported by affidavit before the trial of the petition—see Halsburys Laws of England, Vol. 15, 4th edn at para. 940. This as I see it would be in keeping with the terms of our Act. A recount as such does not provide relief. It is merely an interlocutory proceedings which clarifies the situation and enables the court at the hearing of the petition to pome to a decision in granting relief, that is, in making a determination under.s. 2,8 of the Act. ’ . . In view of the petitioner’s prayer for a scrutiny, whon.no allegation Was made or evidence led .as to the invalidity of any vote, I,ordered; a recount instead. I personally conducted the recount in the presence pf the parties and their counsel and agents: .as Denman, J., observed in the case of Stephney Division, Tower Hamlets, Case, Isaacson v Durant (3) at p. 51,1 hope this will not be a precedent. usual practice in the United Kingdomis to appoint tho Senior Master to conduct the recoct. Having personally-conducted the recount ho weyer I am in .a better Position to appreciate the physical task involved. W returning officers are fully deserying.qf th© court s sympathies. & 10 20 30 40 s. As the parties are already aw, . V MAKAI including those rejected by the rPf„L- Wever> after all the b-JW recounted the result was a3 follows?^ °fficer’ had been exaSneXd Respondent; Petitioner Rejected ballot papers: 4 545 votea Total ballot PaPera It will be seen therefrom thnf +1 affected: indeed the respondent imnrovcdT * °Vh° eIeofcion was no* winning margin of votes from 558 to 578 Th P°?lt'On, bX increasing hi8 that the respondent was duly elected and tho netiih..; • na tno petition is accordingly dismissed. Pelilion dismissed