Lieutenant Alick Bruce Makondo v The Attorney General (Appeal 56 of 2016) [2018] ZMSC 355 (7 December 2018)

J IN THE SUPREME COURT · · /2016, HOLDEN AT NDOLA [Civil JlUisdietiJo.n) :BETWEEN: AND APPELLANT ATTORNEY GENERAL RESPONDEN·T Cor.am ·wood, Kahu a and Mutuna, JJ s. On 4tn December :2018 and T t::c. December 2018 F·or the A.ppellan.t Mr. J . Mataliiiro 5, Messrs Mund1.a Ma:tila and Partners. F,o.r the Resp. on,de:n t Ms n,. Mwewa., Assistant Senior State Advocat ,e , Attorney Generars Chamb eli"S JUDGMENT Mu tu na , JS. DP. Ii ered th e j u dginent of the Cou r t . Cases refen-ed t o: 11 R v E.ast Birkshi~e Health Authority, ex p atb?! Walsh 111985) QBD 2) Rliidg:e v Baldwin t l 963) 2 ALL ER 66 3) Chitala (Secretary of Zambhl Democratic Cong.11essJ v Attom.cy General ( 1995 ... 1.997) ZR 91 ' 4} R v Inland Revenue Commissioner ex parte National Federation of Self Employed and Small Business Limited f 1982) AC 617 51 R v Epping and Harlow General Commissioners, ex parte Goldstraw {1983) 3 ALL ER 257 6) Shilling Bob Zinka v Attorney General (1990/1992) ZR 73 7) R v Chief Constable of Mersey Side Police, ex parte Calveley (1986) QB424 8) The Minster of Home Affairs and The Attorney General v Lee Habasonda {Suing on his own behalf and on behalf of The Southern African Resolution of Disputes, SCZ judgment No. 23 of 2007 9) Mungomba and others v Machungwa and another, SCZ judgment Number 3 of 2003 Legislation referred to: 1) Zambia National Service Act, Cap 121 2) The Supreme Court Practice, 1999 volume 1 3) National Service (General) Regulations, Statutory Instrument Number 2 of 1973 Introduction I ) This appeal steins from the judgment of the Learned High Cou rt Judge denying the Appellan t leave to commence judicial review proceedings. The decision followed an a pplication by the Appellant for leave to commence judicial review proceedings in which he intended c hal lenging t he decisions of the School Commander, tribunal at Zan1bia National Service (ZNS) Kabwe, Cormnandant (ZNS Headquarters) and J3 subsequently, the PresidenL, whic h led to h is dismissal form ZNS. 2) The Appellan t contends there was procedural impropriety, want of due process 1n the course of the heari ngs and want of authority on the part of the decision makers in effecting his dismissal. Background 3) The Appellan t was employed by ZNS as a Lieutenant. During h is employment, he and two others were on 2710 June 2014 charged with three counts of offences pursuant to Section 29 of the Zambia National Service Act (ZNS Act). 4) Th e offences a lleged oppressive and tyrannical conduct by the Appellant and his co-accused towards recruits who were infe rior in rank to them. 5) TK~ter, on 3rd July 2014 t he Appellant appeared before what was termed the Record of School Commander 's Summary Trial at Kabwe ZNS training school. The charges were laid out to hin1 and he pleaded not i,rui.lty. After the Appellant took plea, the presiding officer called five witnesses who testified agains t the Appellan t in respect of the charges . The AppeUant cr oss examined all but one of the witnesses following th eir exani ination in chief. J• 6) After the hearing, the presidin g officer found tha t a prima facie case had been established against the Appellant an d referred the rnatter to a tribunal for a hearin g. The presiding office r a lso advised the Appella nt. t o prepare his defence. 7) On 3"' July 2014, the Commanding officer of th e tribunal submitted a request to the Co1n mcu1dant ZNS headquarter to convene a hearing for th e Appe llan t becau se the Commander ZNS Kabwe had no power to convene one in respect of the Appellant. P ursuan t to t h is r equest, the Con1mru1dan t ZNS constitu ted a u-ibunal which h eld a heari ng of the ma tter. 8) On 5 th Septen1ber 20 14 a Colone. I R. C . Mbewe writ ing on behalf of the Commandant ZNS , informed t he Appellant that the confirming Authority had studied the proceedings of the tribunal ru1cl concurred ,vith its findings reco1nn1ending t hat he be dism issed . T he Appellru1t was also infonned that the reeo1nmendation was subject to approval by the Com ma nd er in Chie f of the Armed Forces , (the Presiden t) . He was fu rther advised of h is righ t of appeal to the President. 9) The App ellan t e.xercised his righ t of appeal and on 16~• S eptember 2014 he lodged a lett er of appeal to the President. In doing so he ad vru1ced two grounds of appeal which con tested the recommenda tion of the t ribunal t ha t he be disrr1issed and alleged that the I • JS punishrnent imposed upon hin1 was harsh in view of the 10) fac t that he had been a loyal servan t of 7. NS. The.: Presiden t respond ed by letter d ated lo,• June 2015, the grounds of appeal indicating that he found ''irisuffccient a11d lackillg merit to 1varrant any consideration for leniency·. He accordingly invoked his powers under Section 33(3) of the ZNS Act and dismissed the Appellant from service forthwith. This did not please the Appellant so he applied to the High Court for leave to commence judicial review proceedings pursuant to Order 53 rule 3( I )(2) and ( l OJ(a) of the Supreme Court Practice, 1999, ( White Book). The Appellant's claim in the High Court, contentions and arguments by the parties 11) The Appellant launched h is application in tht: High Court ,vith bis two other ,,01leagues who had ,;uJiered the same fate. The application was by way of Notice of Application for leave to apply for judicial review, supported by a statement and affidavits verifying facts. 12) The statement, as it is relevant to the Appellant's case, revealed that the Appellant was challenging the following: 12.l the decision by the President to dlsmlas him; 12.2 the proceedings before the summary trial held by the School Commander of ZNS at Kabwe; J6 12.3 the decision by the School Commander of ZNS Kabwe that a prima facie case had been established against him and the subsequent decision to refer his case to the tribunal for a trial; 12.4 proceeding$ of the tribunal convened under Order number 06/2014 held on 5th July 2014; 12.5 the decision by the confirming authority by way of the letter by Colonel R. C. Mbewe concurring with the findings and recommendations of the tribunal to recommend to the Commander-In-Chief that he be dismissed from ZNS. 13) The rel ief sought by the Appellant was as follows: 13.1 a declaration that the decision by the President to dismiss him from ZNS was unlawful; 13.2 an order of certiorari to remove into the High Court for purposes of quashing the decision by the President to dismiss him from ZNS or at all; 13.3 an order prohibiting the Commander of ZNS and or hls subordinates and or pergons of Uke authority from doing anything that would give effect to the decision of the President to dismiss him from ZNS; 13.4 If leave is granted, the leave to operate as a stay of the decision the President pursuant to Order 53 rule 3 (lO)fa), pending the hearing of the motion or summons or until further order; 13.5 An o r der o f ce rtiorari to r emove Into the W gh Court for purposed of quashing the decision o f the School Commander of ZNS, Kabwe in ao far as it purports to establish a prima fac ie ca.sc aga inst h im for the offences or oppressive conduct, disobedience to orders and conduct prejudicial to g ood order and discipline and t he decision to refer his matter t o a tribunal for trial; 13.6 an ord er of certiorari t o rem ove Into the Hi.gh Court for p urpous of quas hing the d ecision of the tribunal in so far •• It purports to find hlm guilty and lta d ecision in so far as it purpo rts t o recom m end that he be dismissed from ZNS; 13.7 an order o f certiorari t o re m ove Into the High Court for p urposes of quashi ng the d ecision of the "confirming Auth o rity' and or Col. R. C. Mbewe In so far ai; It p urpo rts to concur with t he findings and recommendat ion of the t ribunal to t he Presiden t that he be dismissed from ZNS; l 4) The grounds upon which the Appellant sought the relief were: 14. l Illegality Und er t his h ead, the Appe llant challenged the decision b y t he President to dis miss lllm on t h e grounds that: he h ad no powers to do so; auch powers are veste d in the tribunal and the Command.ant; the power was thus !8 exercised illegally as no such recommendation wa,; made by either the tribunal or Comma.ndanti the recommendation by the tribunal to the " Con,J'irming Authority" to dismiss the Appellant contravened section 32 of the Act which ma.ndates the tribunal to impose and not recommend a pu,nJsh.ment; and the "Conjlnning Authority' bas no power to recommend the dismissal bec.ause such power wa.s lo the preserve o f the Commandant. Further, such power co·uld not be exercised by Col. R. C. Mbewe o n behalf of the Command.ant; a.s such, the purported exercise of the power by Col. R. C. Mbewe wa.s illegal. 14.2 Procedural Impropriety The Appella.nt's contentions under this bead were that: the decision by the President was procedurally wrong because there was no decision made by the tribunal or C·ommandant on the punishment to be meted out to him which would have been subject to confirmation pursuant to Section 33(3) of the ZNS Act· there was want of compliance with the rules of natural justice by the President prior to the dismissal; the tribunal and the Commandant in dismissing h.lm faJled to comply with the procedure laid down in Section 32 or the ZNS Act and National Service (=eraJJ Regulatlona; and the decision of the School Commander and tribunal was wrong ab initio for want of adherence to the rules or natural justice and thus void ab lnltlo. It waa also contended that the presiding members were biaaed 14.3 Excess of Jurisdiction/Error of Law and Record J9 Under this head, the Appellant repea ted the conte·ntions contained in paragraph 14.2 . 14.4 Irrationality The contention here was that: Tbe President's decision was unfair because he did not consider the fact that the tribunal had d enied him his right to be heard; the dec i.si.on took Into account Irrelevant consideratlortsi t he declalon ra.ucd to follow precedent and was thus discriminatory; and the decl&ion to recommend the Appellant's dilffflissal was made without taking into account relevant factors and the punishment was harsh, regard having been had to the Appellant's disciplinary record. 15) The evidence in support of the claim recounted the Appella nt's career in ZNS. It also se l out the physical natu.re or militaiy train ing wh ic h he said is s trenuou s and can lead to injury. He stated furth er that the training includes mental and psychological torture. By the,;;e contentions the Appellan t sought to justify the treatment he and others mered our on the rc:cruits. 16) The Appellant then set ou t the events leading to his dismi,;sal and contended failure to observe rules of na tura l justice, failure to follow proccrlure and bias a t va ri ous disciplinary leve ls of hi s case. 17) The thru s t of th e relevant portions or the Appellants argun1en ts was that the Appella 11t had satisfied the test JlO for th e grant or leave for judicial review as per Order 53 ru le 14 sub-rule 21 of th e Whi te Book. It was argued that t he Appellant 's substantive a pplication for ju dicia l review is not frivolous, vexatious or hopeless because there is a case fit. ror further investigation by the High Court at Fu II inter partes hearing. I 8) In addi t ion, the affidavit evidence a lso revealed t hat the re is an a rguable case fit for furth er investigat ion by the Court. 19) In response, th e Respondent contended that the AJJpcllant's clai1n related to his en1ploy1nen t and was thus governed by private law as opposed to public law. ,Jud icial review was thus not the appropriate remedy as per Order 53 rule 14 sub-rule 33 of the White Book, and the case of R v Ea s t Birk shire Health Aut hority, ex parte Wals h' 20) The Respon dent also opposed th e application for leave to operate as a stay because it was a.kin to seeking an order of injunction agains1· the State. 21) In reply the Appellant argued t hat the cl a im fell in public law because his dismissal was pursuan t to a statute as opposed to a contract of employment.. In this regard the question was whether t here was c01npliance with s ta tu te and not tenns and conditions of employmen t. In suppon of this argun1ent reLiance was placed on the case of R idge v Baldwin• . J1 I Consideration by the Learned High Court Judge and decision 22) The Learned High Court Judge considered the argu rnent s and evidence preseined before her and identified the iss ue for determination as being whether or not .leave to a pply for judicial review c,u·, be granted in res pect of th e decision by the Pres ide nt to dismiss the Appellant fron1 ZNS. She then set ou t the purpose of an application for leave prior to applying for judicial review as be ing eli1n ination of vexatious or hopeless a pplications a t ex part·e stage; a.nd to ens ure that an a pplicant is only allowed to proceed to the substantive hearing if the Court is s atisfied t hat th ere is a case fit for fu rt he r investigation a t fu ll iriter parte hearing. 23) To reinforce her finding, the I.earned High Court Judge referred to our decision in t he case of Chitala (Secretary of the Zambia Democratic Congress) v Attorney General' where, quo ting from t he case of R v Inland Revenue Commissioners ex parte National Federation of Self employed and Small Business Limited• , we set out the pu rpose of leave at page 95 as follows : • to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative Jl2 action while proceeding for judicial review of it was actually pending even though misconceived." 24) ln addition, th e Learned High Court Judge iden tified the ot her factor to be taken into con sideration at leave stage as being wh ether the applicant h ad exhausted alterna tjve remedies available to hi1n. She referred to th e case of R v Epping and Harlow General Commissioner, ex parte Goldstraws where the English Court held that save exceptional circu1ns t an ces, the j ud icial review jurisdiction will not be exercised by the Courts where other remed ies a re available and they have not been used. 25) After t h e Learned High Court ,Judge set out the foregoing principles on leave, sh e reminded herself that at tha t stage she was not called upon to determi ne the merits or demerits of the case. Her role was to determine whether leave for judicial review is the proper remedy for deciding if th e Appellant's d ismissal from ZNS was lawful. 26) The Lea1·ned High Court Judge found th at t he decisions the Appellant sought to contest were ,nade by the tr ibunal which tried him. Therefore, one cannot sav t ha t • t he President made the original decision co dism iss the Appellant. As a result, she found that there was no case fit for further i nvestigation . She a lso found th at this was fl ca~e where alternative ren1edies could be explored. Jl) 27) The Judge concluded by holding t11at the application lacked merit and dism issed it. Grounds of Appeal to this Court and arguments by the parties 28) The Appellan t is unhappy with th e decision rendered by th e Learned High Court Judge and hail launched th is appeal on t h ree grounds as follows: 28.1 The learned trial judge misdfrected herself in law and fact when she failed to find that there was a cause fit for further investigation and therefore refused to grant leave to the Appellant to apply for judicial review 28.2 The learned trial judge misdirected herself in law and fact when she held that there were other remedie& available to the Appellant which he did not avail himself to; and failed to specify such remedies in relation to the facts which were presented before her 28.3 The learned trial judge erred in law and fact when she held that both the ZNS Commandant and tribunal which tried the Appellant had made decisions to dismiss the Appellant and not the President. 29) Both parties filed heads of argun1en t in support a nd opposing t he appeal which counsel relied u pon entirely at the heari ng of the appeal. A substan tial portion of the two sets of heads of argun1ent addressed the substantive clain1 which the Appellant sought to bring before the Court. These arguments ate not relevan t to the application which was before t he Learned High Jl4 Court Judge as we ha ve expla ined in l hc latte r part of this juclgin ent. Our focu s is on ly on tJ1ose parts of th e heads of arb'Ul!lent which a re re levan t to the ap pUcaLi on placed before l.he Learned High Court J udgc. 30) Arguing ground I of the appeal the Appella nt con tended that there was and still is a prima Jacie question suilable for further investigation warranting the grant of leave for judicial review. The Appellant then set out the purpose of the remedy of judicial review and referred to the case of Shilling Bob Zinka II Att~mey General5 in which we set out the instances where it is permfasible for a pu blic aut hority to derogate from the principles of natural ju stice in the exercise of its powers. He urgued tha t in th is case the decision by t he President to d.ism iss h im was con trary to the law, as s u ch Lhe ma tte r was one amenable to judicia l review. 3 1) The Appellan t extended h is a rgwne nts by co ntendi ng that the Learned High Court Judge erred a t law whe n she failed to see that there were questions of illegality, procedural impropriety, excess jurisdiction and error of law on the record in the manner U1c decision to dismiss him from ZNS was made. The Appellant concluded by lU'guing in detail all the four heads upon which he sou ght to challenge the d ecision to dismiss him from ZNS. H S 32) Coming to groun d 2 of the appeal, although Lhe Appellan t made le ngthy argum en ts, his bon e of contention wa!I merely t his tha t, despite the Learned H igh Court Judge finding that th ere were a lternat ive rernedies open to the Appellan t othe r than judicial review, s he did not specify them. He also argued tha t the Learned High Cou rt Judge erred at Jaw by failing to detennine whether the case fell under p r ivate or public law. 33) The Appellant concl uded argu1nen ts unde r grou nd 2 of the appeal by rest.ating th e argumen ts he a dva n ced before t he Learned High Court Judge that s ince t he Appellan t's d is 1nissal was p rovided for under statute, his remedy lay in judicial review. Th is he argued, was similar to the s ituation in the cas e of Ridge v Baldwin•. He argued that in t hat case the Court found that the dis1nissal of the pol.ice constable was an1en able to judicial review because his employment was govern ed by s tarute. 34) In relation to ground 3 of the appea l, the AppeUa nt quest ioned t he finding by t he Learned High Court J u dge that the Commandant and the tribunal 1nade th e decision to d is m iss the Appellcu1t. He con tended that t he t.wo merely recornrnended his disrnissal to t he President who then decided to dismiss h i1n. 35) In response to grou nd 1 of th e appeal, the Respondent argued that the Appellant's argun1ents were inviting us to delve into the me rits and demerits of the substa ntive rnatter . It was argued that at leave s tage an applicant me rely seeks to show th e Court t hat th ere is a case fit for further investigat ion. We were once again referred to our decision in the case of Chitala (Secretary of the Zambia Democratic Congress} v Attorney General3 where we set out the purpose of t he requiremen t of leave to apply for judicial review. 36) Like, t he Appellant, the Res pondent concluded its argu ment under ground 1 by arguing in d etail wha t constitutes illegali ty, proced1.ual impropr iety, excess of juris diction and error of law on the face of t he record . 37) Regardi ng ground 2 of the appeal, the pos ition tak en by the Respondent was sirnply this, that there is no obligation placed upon the court. to explain th e altern ative remedy available where it finds th a t judicial review is inappropriate. The Respondent argued that this was clearly sta ted in the case of R v Chief Constable of Mersey Side Police, ex parte Calvery7 when the Co ur l he ld tha t there is no obligation on th e Court to den1onst ra te how other remedies other than judicial review a pplied to th e facts . The Respondent also drew our attention to t he decision s in t he cases of The Minister of Home Affairs and the Attorney General v Jl7 Lee Habasonda suing on his own behalf and on behalf of the Southern African Centre for the Constructive Resolution of disputes" and Mungom.ba and others v Machungwa and another9• It argued further that in terms of Order 53 of the White Book, ju dicial review is a ren1edy of last rc,sort and a party is thus expected to exhaust all other remedies before resorting to it. 38) In response to grou nd 3 of the appeal the position taken by the Respondent was that the Corrunan da nt a nd tribunal did make a finding which is the decision the Appellant is aggrieved with . That the proceed ings of t ri bu nal which t ried the Appellant reveal th at it imposed a p1.u1ishment and sentenced him along with oth ers. This is what was subject to co nfinnation by the confirrning au thority. Consideration by the Court and decision 39) We have considered the argurnents by the parties a nd the record of appeal. It is settled law, and to the parties' credit they are in agreement, that at leave stage an a pplicant h as to demonstrate to the Court t hat h e has a case fit for further investigation and, therefore, deserves a hearing of the s u bstantive rnatter at inter partes s tage. Applications for leave to apply for judic ia l review, thus, allow court~ to sieve. cases and weed out frivolous, Jl8 vexatious and hopeless applications thereby, keep busy bod ies and vexatious litiga nts outside the doors of t he court . 40) Th e foregoing is the test th a t the Appellant was called upon to surmoun t and as a result t he only issue that falls for detennination wh ich will address all t h ree grounds of appeal adva nced is , d id t he Appellant dem on strate to the Learned High Court Ju dge that h e had a case fit for further investigation? \!/e in tend add res s ing th is issue from two fronts, n am ely, th e challenge against the decision by th e School Commander and tribw1aJ and Comn1andant ZNS on one han d , and t he challenge again st the decision by the President on t he other hand. 4 1) The s tatemen t on ex parte application for leave to apply for judicial review which the Appella n t filed in the Cou rt below reveals that he challenges t he decision of t he School Coxnmander at ZNS Kabwe, su1n mary trial by the tribunal and con firming authority Commandant ZNS as per the letter by Col. R. C. Mbewe. The firs t two decision s were m a de administratively and were subject to appeal to t he Con1n1andan t ZNS in accor dance with Section 33(1) of th e ZNS Act. The Section states as follows: "Any serviceman aggrieved by any fin ding of an appropriate tribunal or any award of an appropriate ' trlbu_nal may, within seven day a of the notification to h im thereof, appeal to the Commandant in writing and the Commandant may qua.sh, confirm or vary any Onding of the appropriate tribunal could have received upon the evidence, i.nclu.dlng additional evidence which the Commandant in tbe bearing of tbe appeal and may quash, confirm or remit a.ny punishment impoacd by the appropriate tribunal or may substitute therefore any punishment which the appropriate tribunal could have Jmposed." To Lhe extent, tberefore, tbal l here is a remedy prescribed under section 33(1) of the Act, the Appellant ought to have resoned to rhat remedy and nor judicial review. There is no evide nce whatsoeve r, on the record of appeal to show that the Appe lla nt appealed again~t the decisio n of the School Commander or the tribunal i11 accordance with Section 33(1) of the ZNS Act. 4 2) The record of appeal merely reveals at page 55 that the Kabwc Training School referred the Appellant's case 10 the Commandant ZNS Headquarters a t Lusaka on the ground that the Com tnander at Ko.bwc had no power to try the Appellant. 4·3} To t his exten t, lhc Appellant did not· avail himself to t he remedy available to him of appeal and thus cannot resort to judicial review. There was thus no misdirection on the part of the Learned lligh Court Judge when she JlO found that there was alternative remedy against those decisions. 44) In regard to the decision by th e CommtU1dtlnl one might a l'gue that the Appellan t d id indeed a ppeal to th e President in line wit h Section 33(3) of th e Act. B ut a perusa l of his grounds of appeal to the President reveals that he was not challenging t he decisio ns of the three but rather sought mitigation by the President. He, in th.is regard, argued that he ought to have been fined sinc.e there was an option of a fmc and he had been a loyal servtull. He did not advance arguments on procedural impropriety and illegality which be advanced in the judicial review a pplication before the President. 45) To lhe extent, therefore, th at the Appe lla nt did not avail himself lo the remedy of appealing t he decisions , h is application for leave to apply for judicial review was not only improperly prese nted before the Court bu t demonstrated lhat he did not have a case fit for further investigation. Consequently, we agree with the finding by the Learned High Court Judge. 46) Turning our allention to the decision by the President, the c ha llenge launched by the Appellant is that the Pre;iidcnt has no power u nder the Act to dismiss him a nd t hat the decision was un fair. Section 33(3) of the Act upon which the Pres ident acted stales as follows: J21 '"Any ae rviceman aggri.cved by the find.ing or award of the Commandant under the provisions of subsection Ill of this section, or subacctlon (31 of s ection thirty-one, may, within fourteen day a o f the notification to him thereof, appeal to the Pre1ldent In writing and t he President may confirm or vary any find ing of the Command.ant and may vary, r-e.mit or con n.rm any punishment imposed or con.firmed by the Command.ant and in au auch cases the deci1ion of t.be President shalJ be final." \Vilhout having to decide the matte1· on its 1nerits because all we are considering is whether the Appellant did establish a prima Jacie case lit for further investiga tion, the section we have quoted reveals, on its face, t hat the President is empowe red to dism iss the Appellant by confinning the decision to d ismiss rnade by the Commandant. To this extent, the Appellant failed to establish a. prima Jacie case fit for further investigation. 47) In additi on, a lthough the Appellant alleges unfai rness on the part of the Preside nt on the grou nd that he should have considered imposing a lighter se ntence, on the fa<..'<! of it, the section does not compel the President to impose a lighter s entence based o n the grounds advanced by the Appellanc. In any eve nt, the Preside nt has the sole discretion under the section to decide on t.he sen ten cc. Jll Con cl u·s.io,n 8) As , -~ ns que · of our d 1c , nunation. al l thv gro n.d o . · ea.l lack me ri I nd ·, 1, ,ap,pea] ooUap , - dismiss L i ,h CO' , , tn be tax 1 1 \:Ve a d fi u·1 iliiliii