Brain Colquhoun Hugh O'Donnel & Partners v Engineering Institution of Zambia (2022/HP/446) [2022] ZMHC 113 (25 November 2022)

/:> IN THE MATTER OF: ORDER 53 SUPREME COURT IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW IN THE MATTER OF: THE ENGINEERING INSTITUTION OF ZAMBIA ACT 2010 IN THE MATTER OF: THE ENGINEERING INSTITUTION OF ZAMBIA CONSTITUTION AND IN THE MATTER OF: A DECISION OF THE COUNCIL OF THE ENGINEERING INSTITUTION OF ZAMBIA (EIZ) TO SUSPEND MEMBERSHIP OF BCHOD CONSULTING ENGINEERS DATED 23R·o JULY 2022 AND A NOTICE ISSUED TO MEMBERS OF EIZ DATED 23RD JULY. 2022 BETWEEN: BRIAN COLQUHOUN HUGH O'DONNELL & PARTNERS (Suing as a Firm) APPLICANT AND ENGINEERING INSTITUTION OF ZAMBIA RESPONDENT Before Honourable Mr. Justice C. Kafunda the 25th day of November, 2022 For the Applicant: For the Respondent: Mr. M. Ndalameta Musal Dhudia & Co. K Phiri with J. Chulu of Corpus Legal Practitioners JUDGMENT Cases referred to: 1. Harrington v The Attorney General Appeal No.60/2016; 2. Council of Civil Service Union v Minister for the Civil Service (1984) 1 KB 223; 3. Minister of Information and Broadcasting Services and Another v Chem.ho and Others, SCZ Judgment No. 11 of 2007; 4. Attorney General v Nigel Kalonde Mutuna Appeal No. 88 of 2012; 5. M (A Practitioner) v Law Association of Zambia l 999/HP/1649; Legislation referred: 1. The Engineering Institution of Zambia Act, 201 O; and 2. The Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia. 3. The Rules of the Supreme Court of England, 1999 Edition (White Book). INTRODUCTION This is an application for Judicial Review made pursuant to Order 53 of the Rules of the Supreme Court of England, 1999 Edition (White J2 book). The application has been made by way of Originating Notice of Motion accompanied by an affidavit in support and skeleton arguments. AFFIDAVIT IN SUPPORT The deponent of the affidavit in support of the Originating Notice of Motion was one George Sitali, the Managing Partner of the Applicant Firm who asserted that on 23 rd July 2022, the Respondent issued a notice to the members of the Engineering Institution of Zambia (EIZ), purporting to suspend the membership of the Applicant, pending further investigations of the Engineering Registration Board and the Disciplinary Committee. The deponent averred that the said notice stated that the suspension was as a result of collaborative investigations carried out by the EIZ Technical Committee and the Joint Investigative Team of the government, which investigations revealed inadequacies in reports pertaining to Society House and the Ndola-Mufulira and Mufulir Mukambo road projects. The deponent stated that the Applicant learned of its purported suspension from a WhatsApp group and that it has been severely disparaged and injured by the lack of proper notification of the said J3 notice by the Respondent. Further, the deponent averred that the Applicant's purported suspension was effected without the Applicant being given an opportunity to be heard by the Respondent. It was averred that the Council did not have power to suspend the Applicant's membership in the manner it did. Further, that only the Board of EIZ has the power to suspend members of the Respondent Institution. The deponent stated that on 25 th July 2022, the Applicant's Advocates, Messrs Corpus Legal Practitioners, authored a cease and desist letter to EIZ demanding that it withdraws the notice of suspension. That despite the said letter being issued, the Respondent has not taken any remedial steps to lift the Applicant's suspension. The deponent averred that it is this refusal by the Respondent to lift the Applicant's suspension which prompted the Applicant to apply for leave to commence Judicial Review proceedings. SKELETON ARGUMENTS IN SUPPORT It was contended in the skeleton arguments that the functions of the Council of the Engineering Institution of Zambia are stipulated in the Engineering Institution of Zambia Act, 2010 (the "Act") and that a J4 perusal of Section 9 of the said Act reveals that the Council does not have power to suspend any member for alleged breaches of the Act or its Constitution. The said Section 9 provides as follows: "The functions of the Council are- (a)Perform all the functions of the Institution; (b) Promote an understanding of professional ethics amongst the engineering professionals; (c) Ensure that the rules and guidelines for professional ethics developed by the Institution are responsive to the expectations of business institutions, the public and those who rely on the engineering work; (d)Participate in the development of international engineering practice standard setting; (e) Make recommendations affecting, or relating to, the engineering profession to the general meeting of the Institution; {fl Register students of engineering; (g) Promote continuing professional development among engineering professionals; and (h)Do all such things and acts as the Institution or Council may do under this Act." The Applicant argued that Section 12 of the Act gives the Engineering Registration Board (the Board) power to inter alia perform registration JS ,, functions of the Institution, including suspension and cancellation of membership. It was therefore argued that only the Board can suspend a member on recommendation from the Disciplinary Committee. Thus, the Applicant stated that the decision to suspend the Applicant was erroneous and illegal and in this regard, the Applicant referred to the case of William Harrington v The Attorney Generall wherein it was held that: " ... a decision is illegal if it contravenes or exceeds the terms of the power which authorizes the making of the decision, or if it pursues an objective other than that for which the power to make the decision was conferred. A decision is also illegal if it is not authorized by any power." Furthermore, the Applicant referred to the case of Council of Civil Service Union v Minister for the Civil Service2 in which the court stated that:" "by illegality as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision making power and must give J6 effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable." The Applicant contended that since the question of illegality is one of statutory interpretation, the provisions of the Act relating to the suspension of its members must be given their ordinary and natural meaning. In support of this position, the Applicant cited the case of Minister of Information and Broadcasting Services and Another v Chembo and Others3. It was argued that under Section 42 of the Act, the Respondent is required to serve, by way of notice, on the engineering organization, directing it to take remedial or other action within a stipulated period as may be prescribed in the notice, or take such measures as the Board may direct. Furthermore, the Applicant stated that according to Section 43, the Board is required, within seven days after service of the notice, to publish the notice in a daily newspaper of wide circulation in the Republic. J7 ' ' The Applicant averred that it has never been served with any such notice issued by the Council or Institution and that neither has it been given an opportunity to remedy the purported breaches of the Act. It was averred therefore that the said notice not having been properly and duly served on the Applicant makes the purported suspension null and void and therefore illegal. AFFIDAVIT IN OPPOSITION The Respondent's affidavit in opposition to the Originating Notice of Motion was sworn by one Abel Ng'andu, the President of the Council of the Respondent Institution. The deponent explained that there are various layers to practicing engineering in Zambia and that as a first port of call, all engineering professionals, engineering units and engineering organizations in Zambia must first be members of the Respondent Institution. The deponent stated that the afore said membership is the sole preserve of the Council, which has an obligation to perform all the functions of the Institution. The deponent averred that as part of the Respondent's regulatory function, the Council has power to terminate the membership of an engineering professional, engineering organization or J8 ' I engineering unit upon being satisfied that their continuation as a member would be prejudicial to the engineering profession. It was deposed that an engineering professional who successfully becomes a member of the Institution may then apply to the Board to be registered as an engineering professional and will thereafter be given a certificate of registration. Further, the deponent stated that an engineering professional has to possess a practicing certificate in order to practice as an engineering professional and that issuance of practicing certificates is done by the Board. The deponent averred that both the Board and the Disciplinary committee have powers to cancel or suspend: i) ii) a registration certificate of an engineering professional; a practicing certificate of an engineering professional; and iii) a practicing certificate of an engineering organization or engineering unit. It was asserted however, that neither the Board nor the Disciplinary Committee can suspend membership, as distinguished from one's practicing certificate or registration certificate. Therefore, the deponent stated that the affidavit in support is misleading to the extent that it mixes up: Jg i) concepts of membership, registration and practicing certificates; and ii) which of the Respondent Institution's organs is entitled to cancel or suspend membership, registration and practicing certificates. The deponent averred that it is not unusual for the Council to resolve to suspend membership of an engineering professional or engineering organization where it is apparent that the engineering profession will be brought into disrepute. He stated that the suspension is not an end in itself but that it is usually done pending a hearing by the Disciplinary Committee. The deponent explained that suspension pending a disciplinary hearing normally occurs when the Council has become aware of some conduct, act or omission that is of grave concern from a professional standpoint. He stated that in this case, the Applicant was engaged by the Road Development Agency as a consultant in the upgrading of 79 .8 kilometers of the Ndola-Mufulira-Mokambo (M4 /MS) road project (the "project"). The deponent averred that as far back as January 2022, the Respondent Institution had received various complaints from the government of the Republic of Zambia regarding the project and that JlO ,, resultantly, a technical committee, together with a Joint Investigative Team from the government, was constituted to audit the project. It was averred that during this audit process, the Applicant was given several opportunities to be heard and that preparation of the audit report was undertaken with the Applicant's input. The deponent stated that when the Respondent Institution received the report of the Technical Committee and Joint Investigations team, it noted some alarming findings such as: i) the total progress achieved on the project was 23. 6% assessed at ZMW85, 063, 262, yet the Contractor had been overpaid by ZMW291, 925, 283.28 under the applicant's watch; ii) miscalculation of the total contract amount varied the total contract sum to ZMW790, 137, 143.86 from ZMW745, 358, 425.22; iii) The Applicant approved and paid bill items with missing/ insufficient and unverified measurement data; iv) The contractor was overpaid due to inclusion of works not performed and failure to verify that items allegedly purchased like motor vehicles, actually existed. The deponent averred that in view of the foregoing, the Council considered that the continued membership of the Applicant would be prejudicial to the engineering profession and that consequently, it Jll ,, suspended the Applicant and referred the matter to the Disciplinary Committee. AFFIDAVIT IN REPLY It was averred in the affidavit in reply that the Council lacks authority to act in any capacity as it was not properly elected. Further, the deponent stated concerning the findings of the Technical Audit Report that the same are unsubstantiated, speculative and without merit. SUBMISSIONS The Applicant's submissions were essentially a reiteration of its averments in the skeleton arguments referred to above. I must mention, however, that the same have been duly taken into consideration. The Respondent, on the other hand, submitted that it did not breach the audi alteram partem rule when it suspended the Applicant as the Applicant will be given an opportunity to be heard before the Disciplinary Committee. In arguing this position, the Respondent referred to the case of Attorney General v Nigel Kalonde Mutuna4 wherein the Supreme Court held that there was no procedural impropriety when the President suspended the Respondents before affording them an opportunity to be heard as they would be afforded this opportunity when they appeared before the tribunal. J12 Moreover, the Respondent averred that the Applicant was actually given an opportunity to be heard in the process leading to the Technical Audit Report on the road project which is the basis for the suspension of the Applicant. The Respondent argued that the functions and powers of the Council are stipulated under the Engineering Institution of Zambia Act and the Respondent's Constitution. It was submitted that under Article IV Clause 7 (1) (f) of the Respondent's Constitution, a Member of the Respondent Institution ceases to be a Member if the Council is satisfied that the continuation of that person as a Member would be prejudicial to the interests of the engineering profession. It was submitted that while the aforesaid provision does not expressly provide for the power by the Council to suspend a Member, the power to suspend is implied. In this regard, the Respondent referred to Section 25 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Zambia which provides as follows: "where any written law confers a power on any person to do or enforce the doing of an act or thing, all such powers shall be understood to be also given as are reasonably J13 /, necessary to enable the person to do or enforce the doing of the act or thing." It was argued that the power to suspend is incidental to the power to terminate and that it need not be express but can be implied. The case of M (A Practitioner) v Law Association of Zambia 5 was cited as authority for this position. ANALYSIS AND DECISION I have considered the arguments raised by the parties in respect of the application for Judicial Review. For the sake of clarity, the decision against which this application is sought is the decision by the Council to suspend the Applicant's membership in the Respondent Institution. Further, the grounds upon which the decision is being assailed are illegality, procedural impropriety and unreasonableness. The kernel of the Applicant's contention is that the decision by the Council was made in contravention of the Engineering Institution of Zambia Act, 2010 as this Act does not give the Council authority to suspend any member of the Respondent Institution, for any alleged breaches of the Act or the Respondent's Constitution. The Applicant has contended that this power ought to have been exercised by the Board. J14 In order to properly determine this matter, I consider that it is necessary to examine the relevant provisions of the legal instruments applicable to the Respondent Institution being; the Engineering Institution of Zambia Act and the Respondent's Constitution, in order to determine whether or not the Council acted within its powers when it suspended the Applicant. To begin with, the functions of the Council are stipulated under Section 9 of the Engineering Institution of Zambia Act (the Act) and according to this provision, the functions of the Council are to: a) perform all the functions of the Institution; b) promote an understanding of professional ethics amongst the engineering professionals; c) ensure that the rules and guidelines for professional ethics developed by the Institution are responsive to the expectations of business institutions, the public and those who rely on engineering work; d) participate in the development of international engineering practice standard setting; e) make recommendations affecting, or relating to, the engineering profession to the general meeting of the Institution; .fl register students of engineering; J15 g) promote continuing professional development among engineering professionals; and h) do all such things and acts as the Institution or Council may do under this Act. The function of the Board, on the other hand, is set out in Section 13 of the Act which provides as follows: "the function of the Board shall be to perform all the registration functions of the Institution." It is also worth mentioning that the Act establishes another organ of the Institution known as the Disciplinary Committee, whose functions shall be referred to later in the Judgment. A thorough reading of the Act and in particular Section 15 ( 1) appears to suggest that there are two types of registration envisaged under the Act. The said section provides as follows: "A person shall not practise as an engineering professional, unless that person is registered as a Member, under the constitution of the Institution, and as an engineering professional, in accordance with this Act." J16 It can be inferred from the fore going provision that for one to practice as an engineering professional, he or she must first be registered as a Member under the Respondent's Constitution and secondly, as an engineering professional in accordance with the Act. Registration of membership under the Respondent's Constitution is provided for under Clause IV of the said Constitution which stipulates inter alia the mode of application as well as the subscription fees to be paid by the Members. Further, the organ that deals with the issues pertaining to registration of Members is the Council. On the other hand, registration as an engineering professional is provided for under Section 16 of the Act and according to this provision, the application must be made to the Board. This twofold registration process is further illustrated in Section 1 7 of the Act which provides that: ((upon receipt of an application under section sixteen, the Board shall issue the applicant with a certificate of registration if the applicant (a) is registered as a Member in accordance with the provisions of the Constitution of the Institution ... " (Emboldened for emphasis) J17 . r Therefore, according to the above provision, one can only register to the Board as an engineering professional if they are registered as a Member in accordance with the provisions of the Respondent's Constitution. The Act also provides for the registration of engineering organisations and engineering units and in line with this, Section 18 (1) states thus: "An engineering organisation or engineering unit shall not provide any engineering service or product, unless that engineering organisation or engineering unit is registered in accordance with this Act." It will further be noted that both the Council and the Board have power to terminate the membership of an engineering professional or engineering organization, to the Institution and to the Board, respectively. According to Clause IV (7) ( 1) (f) of the Respondent's Constitution, one of the ways in which a Member ceases to be a Member is if the Council is satisfied that the continuation of that person as a Member will be prejudicial to the interests of the engineering profession. Further, Section 24 of the Act provides for the cancellation, by the Board, of the registration of an engineering professional or engineering organization. J18 ' I I must point out, that while Section 24 provides for the suspension of a Member by the Board prior to the cancellation of his or her registration, there is no similar provision under the Respondent's Constitution with regards to termination of membership to the Institution by the Council. However, as alluded to above, the Council does have power to terminate the membership of a person to the Institution, in accordance with Clause IV (7) (1) (f) of the Respondent's Constitution referred to above. In view of the power vested in the Respondent to terminate membership, I am persuaded by the argument that, in order for the Council to properly exercise this very serious power of terminating membership, the Council possess implied power to suspend a Member. My view is that, before an authority exercises a power with resultant consequences such as termination of membership, suspension of such a member before a final decision is made, is reasonable and necessary, even if such power of suspension may not be expressly provided for in the law. My position in this regard is fortified by Section 25 of the Interpretation and General Provisions Act, also referred to by the Respondent, which states thus: J19 "Where any written law confers a power on any person to do or enforce the doing of an act or thing, all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing." The key point here is that if the implied power is necessary to enable the person vested with power to do a thing or act, then the implied power will be understood to be given to the person so exercising the power vested. As submitted by the Respondent, the Courts in this jurisdiction have had an opportunity to adjudicate upon the scope of power available to a person on whom any written law confers a power to do or enforce the doing of an act or thing. In the case of M. (A Practitioner) V Law Association of Zambia (2000) Z. R. 88 the Court considered the question of whether or not the power of the Law Association of Zambia to licence a practitioner included or implied the power by the Law Association to suspend such a practitioner as envisaged under Section 25 of the Interpretation and General Provisions Act. The Court settled the said question in the affirmative when it held that; J20 "Again, as presently advised, the power of the Association to licence a practitioner would imply a power to suspend for compelling and urgent cause within the spirit of Section 25 of the Interpretation and General Provisions Act." In the case of the Respondent, in addition to the power to register members, it is invested with power to terminate such membership. In casu, it is clear that the Respondent suspended the Applicant with a view to terminate the Applicant's membership with the Respondent after further determination of the matter by the Disciplinary Committee. In paragraph 20 of the Respondent's affidavit in opposition to the application for Judicial Review, the intention of the Respondent to terminate the membership of the Applicant can be discerned. The deponent stated that; "The Respondent's Council was then satisfied, in terms of its constitution, that the continued membership of the Applicant would be prejudicial to the engineering profession. There is now produced and shown to me, marked as Exhibit "AN 2", a copy of the Technical Audit Report." J21 Given the foregoing, the issue to be determined is whether the act of the Respondent to suspend the Applicant pending hearing of the case against the Applicant by the Disciplinary Committee was an act reasonably necessary to enable the Respondent to enforce it's powers. The Court in the case of M (A Practitioner) held that the law Association, which had powers to licence, had implied power to suspend a practitioner for compelling and urgent cause. In this case, the Respondent has power to register members and to terminate membership. It is the position of the Court that, in a case where the Respondent is moving to terminate membership, it would not be unreasonable for the Respondent to suspend a member whose membership the Respondent intends to terminate if the circumstances of the case are compelling and urgent as per the test established by the Court in the case of M (A Practitioner) supra. In casu, there was an inquiry into the allegations against the Applicant, in which inquiry the Applicant participated. The report prepared after the said inquiry makes serious allegations against the Applicant, regarding it's role in public projects wherein it is alleged that large sums of public funds were embezzled with the alleged collusion of the Applicant. Given the seriousness of the allegations against the Applicant, I am of the view that there was an urgent and compelling J22 ' I case to have the Applicant suspended pending further inquiry by the Disciplinary Committee. I, therefore, find the act of suspending the Applicant by the Respondent to have been reasonably necessary on the part of the Respondent for purposes of enforcing it's powers. In the circumstances, I find that the Council acted within the realm of its authority when it suspended the Applicant from the Respondent Institution. Having so found, I will now move on to determine the next issue which alleges that the Council did not afford the Applicant an opportunity to be heard before placing the Applicant on suspension. I have perused the notice through which the Applicant's suspens10n was communicated and the same reads, in part, as follows: "Following collaborative investigations carried out by the EIZ Technical Committee and the Joint Investigative Team (JIT) of the Government, Council noted serious inadequacies in the submitted reports pertaining to Society House Ndola Mufulira Mukambo road projects. Council has therefore suspended the following engineering organisation's membership in J23 line with the above clause of the 2022 EIZ Constitution and further referred the matter to the Engineering Registration Board and Disciplinary Committee for further review; 1. BICON Consulting Engineering 2. BCHOD Consulting Engineering The Engineering Council has since referred all matters to the Disciplinary Committee for further review and action as provided for in the EIZ Act No. 17 of 2010." It is clear from the above text that after suspending the Applicant, the Council referred the matter to the Disciplinary Committee for further review and action. The letter does not state what sort of action the Disciplinary Committee was to take in this matter but the same can be ascertained by looking at the functions of the Disciplinary Committee as stipulated in the Act. In this regard, Section 49 (1) of the Act provides that: "The functions of the Disciplinary Committee are to hear and determine- (a)any disciplinary action initiated by the Institution against an engineering J24 professional, engineering organisation or engineering unit that has contravened any provision of the Code of Ethics or any provision of this Act; or (b) any complaint or allegation made by any person against an engineering professional, engineering organization or engineering unit." Therefore, it can be inferred from the foregoing that the purpose of referring the matter to the Disciplinary Committee was for the Disciplinary Committee to hear and determine the matter. As can be seen from paragraph (a) above, the Disciplinary Committee has authority to hear disciplinary matters initiated by the Institution against an engineering professional, engineering organization or engineering unit. In casu, the disciplinary action was initiated by the Institution through the Council when it suspended the Applicant. The Disciplinary Committee therefore has authority to hear the matter pursuant to Section 49 (1) (a) of the Act referred to above. J25 It is therefore the case that the Applicant has not been deprived of its right to be heard as the matter is yet to be heard and determined by the Disciplinary Committee. In view of the above findings, I hereby dismiss the Applicant's application for Judicial Review. Costs to the Respondent. Delivered in Chambers at Lus a this November, 22. J26