Dr. Chitalu Gonzo Lumbwe v Council of the University of Zambia (APPEAL NO. 100 OF 1997) [1998] ZMSC 109 (24 November 1998)

( 184) IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 100 OF 1997 BETWEEN: DR. CHITALU GONZO LUMBWE APPELLANT and COUNCIL OF THE UNIVERSITY OF ZAl\.ffiIA RESPONDENT CORAM: NGULUBE, CJ, SAKALA AND CHIRW A, JJS On 28th April, and 24th November, 1998 For appellant - J. P. Sangwa, of Simeza Sangwa and Associates For respondent - B. G. Miaze, of Lisimba and Company JUDGMENT Ngulube, CJ, delivered judgment of the court. This is an appeal against the refusal by the High Court (Bwalya, J) to declare that the election in 1993 of the Director of the Institute of African Studies of the University of Zambia (UNZA) was null and void on the ground that there had been a breach of section 30(1) of the University Act (No. 26 of 1992; now CAP. 136 of the 1995 Edition of the Laws), Section 30(1) reads:- "30. (1) Deans of Schools and Directors of Institutes, Bureaux or similar bodies shall be elected, from among senior members of the academic staff of the Schools, Institutes, Bureaux or similar bodies concerned, by their academic staff in accordance with such election procedure as they may determine: Provided that in the case of a School, Institute or Bureau or similar body in the process of being established the Vice--Chancellor shall appoint the Dean or Director to hold office for a period of one year but at the expiration of that period the academic staff shall hold elections as provided under this section." J2 ( 185) The learned trial Judge found that it was not in dispute that-th~ Registrar at the main Campus gave notice of the vacancy in the post of Director of the Institute of Africa. Q. Studies; that the seven members of staff concerned had not made any procedure for the conduct of the election; and that the election took place under an old procedure put forward by the Registrar. The learned trial Judge found that the adoption of the procedure put forward by the Registrar with which ~e majority of the staff were quite happy had not worked to anyone's disadvantage, rendering the complaint academic and vexatious. He considered that, on its true construction, the section of the law under discussion did not seek to provide for any particular statutory procedure, but only a ·flexible administrative mechanism which would ensure the participation of the members of staff in free and fair elections. Mr. Sangwa, Counsel for the appellant suggests in effect 'that S.30(1) demands in imperative terms that an election can only be validly conducted in accordance with the procedure detennined by the staff so that there can be no question of the staff simply acquiescing to a procedure proposed or laid down by the Registrar or the Central administration. l\1r. Miaze countered this by drawing attention to the word "may" in the phrase "Such election procedure as they may determine" to argue that what was mandatory was the holding of an election while the form and procedure of such election was at the option of the electorate. We have considered this matter. We bear in mind that declaratory relief is discretionary and is not given if there is likely to be more mi!ichief, disruption and hann than good in the declaration. We also bear in mind what this Court has approved in the past with regard to the question whether a provision is mandatory or directory. In ATTORNEY-GENERAL -V- JUMA (1984) ZR 1, we said the following, at page 4 to page 5 :- "In discussing mandatory and directory provisions, Basu's Commentary on the Constitution of India, 5th Edition, Volume One, says this at pages 59 and 60: "The distinction between mandatory and directory provisions applies in the case of constitutions as in the case of ordinary statµtes. The distinction is that while a mandatory enactment must be obeyed or fulfilled 'exactly', it is sufficient if a directory enactment be obeyed or fulfilled substantially. Secondly, if a provision is merely directory, penalty may be incurred for its non-compliance, but the act or thing done is regarded as good notwithstanding such non-compliance; if, on the other band, a requirement is mandatory, non-compliance with it renders the act invalid. The general rule about constitutional provisions is that they should be regarded as mandatory where such construction is possible." However, it is a truism that there are exceptions to every general rule. Whether or not this case is an exception to the general rule remains to be seen. In considering mandatory and directory provisions of statutes, including those of the Constitution, Doyle, C. J., said in Attorney-General -v- Chipango, (5) at page 6: "It seems to me that the proper way to approach the problem is to be found in a passage on pp.314 and 315 of the 12th Ed. of Maxwell's Interpretation of statutes. 'The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non~compliance, is that requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases, the conditions or forms prescribed by the statutes have been regarded as essential to the act or thing regulated by it, and their omission bas been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell, L. C., 'can be laid down for the construction of statutes, as to (187) whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobeclielice. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.' Without impugning in any way the correctness of the decision of courts of other countries in relation to their own statutes and their own particular circumstances, I would approach S. 26A (now Article 27 of the Constitution) in the way pointed out in particular by Lord Penzance." He continued at page 7: "The courts have in the past held that where a provision laid down a number of requirements, some might be held to be mandatory while others might merely be directory. See for example, Pope -v- Clarke (6)." These passages in, our view, correctly state the law in relation to mandatory and directory provisions of statutes." It seems to us that the Court below and Mr. Miaze here were on firm ground. The requirement for the holding of an election was certainly mandatory. However, the form of such elections which was not spelt out was permissive. The elections are expected to follow the basic democratic principles and the adoption of a workable model or precedent set by the Central ad.ministration is well within the spirit - though not necessarily the letter - of the provision. It follows also that if the appellant had been right in his contention - which we find he was not - a declaration would not have been appropriate to vindicate the feelings of one person when the majority had exercised their democratic right and when any fresh election would have been otiose. JS \ 100/ The appeal is dismissed, with costs to be taxed in default of agreement. ' M. M. S. W. NGULUBE CHIBF JUSTICE E. L. SAKALA SUPREME COURT JUDGE D. K. CHIRWA SUPREME COURT JUDGE