It is an insult to justice to proceed from here without first citing the authority we are moving with

form this point henceforth. Section 741, has this to say, and I quote;

“(1) Subject to the provisions of this section a city council or a municipal council may-

(a) Admit to the status of honorary freeman of the city or municipality persons of
distinction and persons who have rendered eminent services to the city or municipality;

(b) If it considers that a person admitted to the status of honorary freeman of the city or
municipality has subsequently ceased to be worthy thereof, annul the admission of the
person to such status.

(2) The power of admitting or annulling the admission of a person to the status of
honorary freeman of a city or municipality shall not be exercised except by resolution of
the city or municipal council supported by the votes of not less than two-thirds of the
whole number of councillors.

(3) The principal officer of a municipal council shall keep a list, to be styled the
honorary freemen's roll, in which shall be inscribed the names of all persons admitted to
the status of honorary freeman of the municipality and from which shall be removed the
name of any person whose admission to that status has been annulled.”

This is the section that confers the powers to that council to admit or give people of distinct
status the honorary freeman status. Obviously there is also the reverse that they are also the ones
that strips the same status from the person. In all this a set procedure should be followed to make
such appointments valid.

Therefore in casu the council of Lusaka indeed had the requisite powers to confer the honorary
freeman status to the Zambian national soccer team and also to their foreign coach. The council
acted within its powers at law. What should be noted is that these powers given to the council are
limited in the scope of that the council operate in. meaning that the Lusaka city council can only
give the freeman status only in Lusaka and no further. The jurisdiction of Lusaka council is
Lusaka meaning when one leaves the geographical area of Lusaka then the freeman status is no

1
Section 74 of the Local Government Act
longer valid since every council should have a list of their freemen of their respective councils as
dictated by the statute quoted above.

In the matter at hand YTK and the former coach were in Kitwe not Lusaka where they were
conferred with the status of freeman of the city. So for them to claim that they are immune to the
by-laws of the council of Kitwe because they were freeman of the city is void ab initio. Their
status of freeman of the city was only limited to Lusaka because that’s where they were
conferred with that status, not in Kitwe. Thus the city council of Kitwe doesn’t have YTK and
his former coach on their roll of freemen of the city. Therefore they are not immune to the
dictates and demands of the laws in Kitwe hence they can be sued because they are just as
ordinary as any other citizen.

This shows that Kitwe is a sovereign council that has power to govern their own affairs and no
other council despite the size and location can make decisions on behalf another council.
Decisions of Lusaka City Council bide in their respective jurisdiction which is limited within
Lusaka area and that’s all. YTK and his former coach are subjects of Kitwe City Council by-
laws.

Now we turn to the issue of suing YTK and the Coach and which law is invoked to incriminate
the two and or the partying people.

What Mambazo and the neighbors were aggrieved about was the noise that deprived them of
their peaceful enjoyment of their individual properties. At they can sue under the tort of
nuisance.

A nuisance can be defined as an unlawful interference with a person’s use of or enjoyment of

land, or of some right over or in connection with it unimpaired by noxious odors, noise, fumes,
smoke, steam and other interferences.

It’s through this definition that the incident happened in casu deserves to be a nuisance because it
is a noise that disturbed Mambazo and the neighbors for the whole night and it is their right to
press charges on the tort of nuisance. The tort we have here at hand should be ascertained what
kind of a nuisance it is.
The trot of nuisance here is a public nuisance because it affected the whole class of people or the
society at large. An example was given in the case of ATTORNEY-GENERAL v. P.Y.A.
QUARRIES2, quarry operations were conducted in such a way that local residents were affected
by dust and vibrations from explosions. The court defined public nuisance as: “one which
materially affects the reasonable comfort and convenience of life of a class of her majesty’s
subjects. The Defendant’s activities were held to amount to a public nuisance.

On the other hand a private nuisance on other hand is the direct unlawful interference with
another's use or enjoyment of land, or some right over or in connection with it.3

Lord Denning M.R in MILLER v JACKSON4 said that the very essence of a private nuisance is
the unreasonableness use by a man, of his land to the detriment of his neighbor.

Section 172 (1) of the Penal Code5 states:

"Any person who does an act not authorised by law or omits to discharge a legal duty
and thereby causes any common injury, or danger or annoyance, or obstructs or causes
inconvenience to the public in the exercise of common rights, commits the misdemeanour
termed a "common nuisance" and is liable to imprisonment for one year."

So the Penal Code as quoted above shows that the tort of nuisance can be sued as a criminally by
invoking the section above.

We also have a case that is closely related to the case at hand which is the case of NATIONAL
HOTELS DEVELOPMENT CORPORATION (T/A FAIRVIEW HOTEL) V EBRAHIM
MOTALA,6 the court stated that:

"Whether an act constitutes a nuisance must be determined not merely by an abstract

consideration of the act itself, but by reference to all the circumstances of the particular

2
(1957) 2QB; 169

3
Mvunga P & Ng'ambi P, Mvunga and Ng'ambi on Torts, Unza Press (211).p.201

4
[1977) CA

5
Section 74, Chapter 87

6
[2002] SCZ No. 10
 case, including for example, the time of the commission of the act complained of; the
place of its commission, the manner of committing it, that is whether it is done wantonly
or the reasonable exercise of rights and the effects of its commission that is whether
those effects are transitory or permanent, occasional or continuous , so that the question
of nuisance or no nuisance is one of fact."

This case is great authority in casu because it was a concern of noise where the appellant had
appealed after being sued of playing loud music at their hotel late in the night and the defendant
lives across the road of the hotel. On the other hand the applicant was arguing that the music is
meant to attract clients and its ban may cause serious financial losses which might end up force
the appellant to close business.

Mambazo and his neighbors has to prove if the nuisance affected the whole neighborhood for it
to be a public nuisance if not then they can sue YTK and the foreign coach as individuals on a
private tort of nuisance. The good thing in all this is that the two can be sued under a tort of
nuisance.

Further to that the Mambazo and the neighbors should fulfill some conditions given at law for
the tort to hold water. These are as follows;

a. The occurrence of the incidence must be frequent or often and not a one-off incident;

b. The duration of the incidence must be long enough to disturb a peaceful enjoyment of
one’s property.

c. The gravity of the wrongful act must be serious to the one suing to the extent that ;

The locality of the nuisance will determine whether or not the act complained of is a nuisance
since what can be a nuisance in one locality may not be a nuisance in the other locality: e.g. in a
low residential area, holding kitchen parties may be frequently would amount to a nuisance as
opposed to high residential area because of the noise associated with kitchen parties.

So in light of the above the burden lies with Mambazo and his neighbors to prove whether such
loud music the whole night would amount to be a nuisance in their locality of neighborhood in
Kitwe or the court will decide if they are just being over sensitive which might weaken their
case.

So in conclusion Mambazo and his neighbors have a capacity to sue YTK and his former coach
because they do not have freeman status in Kitwe but rather in Lusaka therefore they can be
sued. The tort they can be sued is the tort of nuisance which has conditions to be fulfill as clearly
expounded above.
BIBLIOGRAPHY

Books

Mvunga P & Ng'ambi P, Mvunga and Ng'ambi on Torts, (211) Unza Press Lusaka

Statues

The Local Government Act, Chapter 281

The Penal Code, Chapter 87

Cases

Attorney-General v. P.Y.A. Quarries (1957) 2QB. 169

Miller v Jackson [1977) CA

National Hotels Development Corporation (t/a Fairview Hotel) v Ebrahim Motala [2002] SCZ
No. 10