Adult Education Association of Zambia v Attorney General (SCZ Appeal 20 of 1993) [1993] ZMSC 134 (8 December 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 20 OF 1993 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: ADULT EDUCATION ASSOCIATION OF ZAMBIA APPELLANT ?^>and • THE ATTORN Y GENERAL ■< \ . <v»/*.•■ RESPONDENT ' :>£ "• ,< Coram: Bweupa, D. C. J., Chaila and Cbirwa JJ. S at Ndola on Sth September and 8th December* 1993 For the Appellant : Mr. N. Chams* Messrs Mwanawasa and Co. For the Respondent: Mr. R. O. Okafor* Principal State Advocate JUDGMENT Chirwa J. S delivered the Judgment of the court. The common facts of the case are that the appellant is an educational association engaged in providing academic education at grade 7 and 9 levels, generally referred to as “drop-outs," The association has no premises of its own to carry out its activities. From about 1982 it was running its programmes at Masala and Chifubu Secondary schools, in about 1989 it extended its activities at Lubuto Secondary School. Kanini Basic Secondary School, Kamba Basic Secondary School and Ndola School for Continuing Education. In about the same year the Copperbelt Provincial Education Officer ordered the association to stop its activities at these various educational institutions giving the reason of over stretching the facilities at these institutions thereby posing a danger of out breaks of epidemics. However the association was saved by the Permanent Secretary inthe Ministry of Education. 2... In 1992 - J2 - In 1992 the Provincial Educational Officer wrote the Headmasters of the various schools advising them not to allow the association carry out its activities at the said schools. As a result of chia the association brought an action by way of a writ seeking a declaration that the decision by the Provincial Education Officer and the Head­ masters to bar the association from using the facilities at the various schools from January 1995 was unlawful and null and void. The matter proceeded to trial without pleadings and at the end of it the learned trial judge refused to grant the declarations sought and it is against this refusal that the association, now appeals to this court. In arguing the appeal Mr. Chama advanced two grounds of appeal. The first ground argued was that the learned trial judge misdirected himself when he found that the licence granted to the appellant was gratuitous and the name waa not enforceable. He submitted that evidence clearly shows that the appellant bad been spending a lot of money in the form of upkeep of the schools amounting to K475,000.00 and in scow cases furniture and other school equipment were bought end they were responsible for paying cleaners. ; These, it was submitted, showed that there was consideration for this licence./ the second ground argued was that the notice given for the appellant to stop using the school premises was insuffi­ cient and unreasonable in that many pupils have been affected. A notice of at least three years should have been given to enable pupils to finish their grade 12. ■■ ' •• ■- / V ... . / ; ■ < . ■ In reply Mr. Okafor for the respondent supported the learned trial commissioner saying the licence was gratuitous and as such the appellant did not need any notice to terminate ? the licence. 3... On the question - J3 - *'*«,»WkU' A\* • * On the question of reasonableness of the notice. it was argued that the notice was reasonable bearing In mind that the wrangle had been going on since 1989 and they were finally told to leave by January 1993 and this notice was given in October 1992 and the appellant has since then stopped operating from the schools and the appeal is merely an academic exercise. * •. •:> ■. - We have seriously considered the evidence on record and also the arguements advanced before us. Although the point was not raised both in court below and before us. we wish co observe and question the competence of the Associate to sue in its name. However, be as it may. we will proceed to consider the,appeal on its own merits. ■ ■ . . .' ” ■ ■ . ‘ "<“r ? ? - The learned trial Commissioner considered the question of consideration to determine the precise terms of the contract if any between the Association and the Ministry of Education. He held that the claims by PW1 that the Association helped towards the upkeep of ths'school were not supported by any evidence. The cleaning up of the premises by the Association cannot be said to be consideration for the use of the premises. We agree with the law quoted by the learned Commissioner from the authors of Clerk and Lindsell on Tort, 14th Edition that a licence can be revoked at any time by notice. In the present case the Association was given notice in October 1992 to cease operating from the schools by 1st January 1993. It cannot be seriously argued that this licence could not be revoked any time as there was not fixed period given to the Association to use the school premises and we reapectifuily agree that the reasonableness or otherwise of the notice is the real issue In this appeal and we will now consider this point. 4... We have observed We have observed from the exhibit evidence that the question of the Association using school premises first came up in 1989 when the Association was stopped from using the same. However, they were later allowed to continue using the facilities after the Permanent Secretary, Ministry of Education, Youth and Sport intervened. We have observed also that the same Permanent Secretary rescinded bis authority and ordered the discontinuance of the v Association’s activities at the schools. The Association was given three months notice and bearing in mind that the Association was allowed to finish its academic year, we are unable to agree that the notice given was insufficient and or unreasonable. Considering the reasons given for dis­ continuing the use of the facilities, we are unable, even if we were persuaded that the notice was insufficient, to order the return of these activities at the schools ■ concerned. We therefore see no misdirections on the part of the learned trial Commissioner in declining to declare the decision to atop the Association from operating from the schools as null and void. We dismiss this appeal with costs both in thia court and in the court below "it ■ , ! •'*> J.' , & /KrjWi? ; ■ ' ' lift ’1 B. K. Bweupe DEPUTY CHIEF JUSTICE *‘"*M*$"chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE