Central African Baptist College and Seminary v Copperbelt University (Appeal No. 189/2018) [2019] ZMCA 411 (8 November 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 189/2018 BETWEEN: CENTRAL AFRICA BAPTIST COLLEGE APPELLANT AND CORAM . .. ;.) • ~- J _ .._ __ ~ ... - .,·.:n_•-~ ; : i ; SPONDENT For the Appellant For the Respondent Mr. G Nyirongo of Messrs Nyirongo & Company Mr. S. K Mumba of Messrs L. B Legal Practitioners JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO : 1. Zambia Consolidated Copper Mines Limited vs. James Matale (1996) ZR 2. Nkhata and Others vs. the Attorney General ( 1966) ZR 124 3. Associated Provincial Picture Houses Limited vs Wednesbury Corporation (1948) 1KB 223 4. Fredrick Jacob Titus Chiluba v. Attorney General SCZ Appeal No. 125 of 2002 5. Council of Civil Services Union v Minister for Civil Service ( 1984) 3 ALLER 935 6. Derick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General ( 1995 - 1997) ZR 91 7. Ster Kinekor vs The Attorney General (2011) ZR Volume 2 8. Dean Namulya Mung'omba & 2 Others v. Peter Machungwa & 2 Others (2003) ZR 1 7. 9. Council of Civil Service Union v. Minister of State for Civil Service (1984) 3 ALL ER 935 -J2- 10. Nyampala Safaris (z) Limited and Others v. Zambia Wildlife Authority (2004) ZR 49 (SC) 11. Chaala vs. Attorney General (2012) ZR 316 12. Mpulungu Harbour Management Limited vs. Attorney General & Another (2010) ZR 244 LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Supreme Court Practice, 1999 Edition 2. Higher Education Act and University Act Chapter 136. 3. Halsbury's Laws of England 4 th Edition Volume 1 4 . Grahame Aldous & John Alder. Applications for Judicial Review; Law and Practice of the Crown Office, 2 nd Edition, Butterworth's, 1993. INTRODUCTION 1. This is an appeal against the judgment of the court below delivered by Justice I. Kamwendo dismissing the Judicial Review application sought by the Appellant. 2. The appeal challenges the holding by the court below to the effect that there was no irrationality, illegality and procedural impropriety and unfairness in the decision made by the Respondent to declare G & G Bakery Limited the successful bidder and the refusal to set aside the said decision. HISTORICAL BACKGROUND 3. The Appellant owned property adjacent to the Respondent's piece of land. The Appellant had for a number of years desired to acquire the piece of land in issue namely; Stand No. 5880 owned by the Respondent. Over a period of 15 years , it made overtures to the Respondent to consider -J3 - selling it the vacant land. 4. On 14th of February 2017 , the Respondent placed an advertisement in the Times of Zambia Newspaper inviting bids from interested members of the public for the purchase of a plot ideal for Commercial , Education and Residential Developments. The advertisement stipulated that preference would be given to bidders who espouse national and community strategy priorities as well as incorporating corporate social responsibility in the overall development of the plot. 5. Consequently, the Appellant on the 15 th of February 2017 , tendered in its bid at Kl , 000 ,000.00. In addition, it proffered its intended use of the plot namely; for a multipurpose hall and pnmary school teacher's training program. The Appellant also advanced its corporate social responsibility programs such as youth sports activities and gym/ auditorium . 6 . On the 17th of February 2017 , all the five bidders were invited to the unsealing of bids . The Appellant and an entity named G & G Bakery Limited had both bid the purchase price sum of Kl , 000 ,000 .00. -J4- 7. According the Appellant, G & G Bakery Limited intended to use the land for parking its trucks. This did not espouse national and community strategies or incorporate social responsibility. The Appellant was therefore perturbed and shocked when it was informed that its bid was unsuccessful, and that G & G Bakery's bid succeeded. COURT ACTION 8. The Appellant, upon being granted leave to commence Judicial Review, filed an Originating Notice of Motion pursuant to Order 53 Rule 5(2) of the Rules of the Supreme Court of England (White Book) 1999 Edition and sought the following; (i) An order of Certiorari to remove into this Honorable Court for the purpose of it being quashed the decision of the Respondent whereby it chose a bidder who did not at all meet the requirement of its advertisement dated 14th February 2017 and therefore breached the Rules of natural justice thereby acting unreasonably and irrationally. (ii) A Declaration that the decision of the Respondent was made in bad faith with regard being had to the fact that the Applicant clearly, demonstrated superiority over G & G Bakery 's bid in terms of espousing national and community strategies and priorities as well as incorporating social responsibility in the overall development plan of the property. (iii) An order that the decision to declare G & G Bakery Limited, whose core and sole business is to make and sell wheat products at a profit to the public is null and void for irrationality, illegality, procedural impropriety and unfairness. -J5- (iv) A Declaration that the Respondent's decision is so unreasonable that no Tribunal given the facts in this case and guided by the law and upon similar facts would come to such a conclusion. (v) An order of Prohibition of the said decision. (vi) An order to Stay Execution of any conveyancing and or assignment of the said Plot Number 5880 Riverside Kitwe to G & G Bakery Limited since the matter has now been brought to court. (vii) Order for Costs. 9. The Respondent in its affidavit dated 19 th May 2017 , opposed the motion for Judicial Review. It was stated that due process was followed in the sale of Plot 5880 Riverside Kitwe. Five bids were received and evaluated by duly constituted committees comprising of Directors/Managers from four departments of the institution. 10. The Respondent further stated that G & G Bakery Limited scored the highest in terms of points such as price, proposed development, national and community priorities and corporate responsibility. The minutes of the Development and Caretaker Committees were, at the time the action was commenced, yet to be produced and signed. The Respondent deposed that the process was open and transparent. 11. In its affidavit in Reply dated 24 th May 2017, the Appellant deposed that though both parties bid the sum of Kl, 000 ,000 as purchase price, the assertion that G & G Bakery Limited 's -J6- bid would lead to wealth creation within Riverside as a direct benefit to the community was not true. The successful bidder had not stated the benefit or job creation to the community. COURT BELOW'S DECISION 12. The court below after hearing the parties and considering the arguments advanced, found that the Respondent was a public body amenable to Judicial Review and had followed due process of the law. As to what constituted National and Community Strategic Priorities and Corporate Social Responsibility, the court below stated that it was up to the Respondent to decide what it was and not for the Appellant or court to decide. 13. The court held that the applicant had clearly not challenged the decision-making process, as it was appealing the merit of the Respondent's decision which is not the purpose of Judicial Review. The court below further held that there was no irrationality, illegality, procedural impropriety and unfairness in the decision of the Respondent. Further, that the rules of natural justice were not breached. The court declined to set aside the decision by the Respondent and dismissed the application for Judicial Review. THE APPEAL AND GROUNDS OF APPEAL -J7- 14. Being dissatisfied with the judgment of the court below, the Appellant raised the following grounds of appeal; (1) That the trial court erred in law and fact when it found that the Appellant herein did not challenge the decision-making process when in fact it did. (2) The trial court erred in law and fact when it found that there was no irrationality, illegality, procedural impropriety and unfairness in the decision of the Respondent. (3) The trial court erred in law and fact when it glossed over the glaring procedural impropriety that the Minutes of the Development Committee and Caretaker Committee which ultimately adopted the recommendation of the Evaluation Committee are non-existent to date. (4) The trial court erred in law and fact when it failed to take note of, and or glossed over the fact that the decision to choose G & G Bakery Limited as the highest and best was so unreasonable and irrational in the Wednesbury sense. ARGUMENTS/CONTENTIONS ON APPEAL 15. The Appellant relied on the heads of arguments dated 11 th December 2018. Ground one assails the finding of fact by the court that the Appellant did not challenge the decision making process when in fact it did. Reference was made to paragraph 8 of the Ex-parte Summons for leave to apply for judicial review, where the Appellant challenges the decision making process of the Respondent. We were drawn to the attention of the cases of Zambia Consolidated Copper -J8- Mines Limited vs. James Matale <11 and Nkhata and Others v. the Attorney General 121 on findings of fact made by a trial court and instances when the appellate court may interfere with them. It was submited therefore that we should reverse the findings of fact made by the court below to the effect that the Appellant had not challenged the decision making process itself. 16. Under ground two, the Appellant submits that the court below erred in law and fact by holding that there was no irrationality, illegality, procedural impropriety, and unfairness 1n the decision-making process of the Respondent. The Appellant went on to define Irrationality (Wednesbury Unreasonableness) as a decision which is so outrageous , in its defiance of logic that no sensible person applying his mind to the question would have arrived at it. The cases of Associated Provincial Picture Houses Limited vs Wednesbury Corporation f3J, Fredrick Jacob Titus Chiluba and Attorney General f4J and Council of Civil Services Union v Minister for Civil Service <51 were cited which dealt with the grounds upon which judicial review may be exercised by the courts, namely; the grounds of illegality, irrationality and procedural impropriety. 17. As to the scope of judicial review, our attention was drawn to -J9- Order 53/ 14/ 1 White Book. Particularly that the remedy of judicial review is not concerned with the merits of the decision but the decision making process itself; that the purpose of the remedy is to ensure fair treatment by an authority to an individual and it is not meant to substitute the opinion of the court for the authority or public body. 18. It was submited that the decision by the Respondent to declare G & G Bakery Limited whose business is to make wheat products for sale to the public at a profit as the successful bidder over the Appellant whose business espouses all the values indicated in the advertisement was illegal and procedurally improper as well as irrational in the W ednes bury unreasonable sense. 19 . On the issue of illegality, the Supreme Court case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General f6J was cited. The Appellant contends that the Respondent did not give effect to the law regulating its decision- making power pursuant to the Higher Education and University Act. Therefore , the decision is null and subject to quashing. 20. In ground three , the Appellant alleges procedural impropriety -Jl0- on the basis of the non-existence of the minutes of the Development and Caretaker Committees adopting the recommendation of the Evaluation Committee. As authority the case of Ster Kinekor vs The Attorney General f7J, a High Court decision, was cited. This authority is not binding upon this court. Further the Derick Chitala (supra) case was cited on procedural impropriety. In addition, the case of Dean Namulya Mung'omba & 2 Others vs Peter Machungwa & 2 Others f8J was referred to which dealt with the purpose of judicial review being concerned with the decision-making process of a tribunal and not with the merit of the decision itself. 21. The gist of the contention 1n ground three, being that the absence of the minutes of the two committees upon which the decision was made had robbed the trial court of material upon which it could have formed a decision as to whether the decision making process was properly followed or not. 22. In ground four, the Appellant submited that the court below glossed over the fact that the decision by the Respondent to choose G & G Bakery Limited as highest and best bidder was unreasonable and irrational in the W ednes bury sense. The -Jll- already cited cases of Associated Provincial Pictures Houses (Supra) and Council of Civil Service Union v Minister of State for Civil Service f9J was referred to. It was argued that the decision to choose G & G Bakery Limited over the Appellant is illogical and irrational in view of the laid down requirements stipulated in the advertisement. We were urged to uphold the appeal. 23. The Respondent in its heads of arguments dated 13 th March 2019 submits in response to ground one that the court below was on firm ground when it held that there was no challenge to the decision-making process itself. The Respondent proceeded to refer to the purpose of judicial review as outlined in the case of Nyampala Safaris (z) Limited and Others Vs Zambia Wildlife Authority. 24. Further, the case of Chaala vs. Attorney General and Another on the public law remedy of judicial review was cited. The Respondent submits that the Appellant appeared to be challenging the decision made by the Respondent and not the decision-making process within the Respondent's institution. The Appellant merely wants the Respondent's decision to be set aside in order to be sold the plot in issue. It was submited that judicial review should not be treated as an appeal from the decision of a public authority but a -J12- review. 25. The Respondent contends that sufficient evidence was adduced showing that the due process was followed by it. Ministerial authority for sale was obtained as required under Section 26 (2) of the Higher Education Act No. 4 of 2013. Further, the bids were opened. Evaluation and consideration by a duly constituted committee was undertaken pursuant to paragraph 4 of the 2 n d Schedule of the aforementioned Act . Therefore, ground one is contended to have no merit. 26. In response to ground two, it was submitted that the Respondent had construed the phrases "National and Community Strategic Priorities" and "Corporate Social Responsibility" and arrived at a decision. As authority, reference was made to the case of Mpulungu Harbour Management Limited vs. Attorney General & Another f12J particularly the deliberation by the Court on clause 21.1 of the agreement between the parties. The court stated that "the agreements permitted the 1st Respondent to invoke it. The clause did not specify how the phrase national interest would be determined. Therefore, it is not unreasonable for the 1st Respondent to invoke the clause on its own view of what constituted national interest. " -J13- 27. The Respondent argued that the fact that the bid by the Appellant to purchase the property in issue was unsuccessful does not make the decision in issue subject to challenge. 28. As regards grounds 2 and 4, the Respondent submits simply that they lack merit and ought to be dismissed. 29. In response to ground three, the Appellant submits that there was no procedural impropriety in the decision-making process . They alluded to the description of procedural impropriety by Ngulube C. J. , as he then was , in the cited case of Derick Chitala (Supra). Further, that there was no procedure or Legislative Instrument pinpointed to which entailed that the signed minutes of the Council Committees should be available before the sale of the property. The minutes in issue were yet to be prepared at the time of the case. The decision-making process having been properly done ; we were urged to dismiss the appeal. 30. At the hearing of the appeal, the Appellant reiterated the issue of procedural impropriety and made reference to the affidavit in opposition by the Respondent. Particularly the deposition stating that the minutes accepting the evaluation committee 's recommendation to choose G & G Bakery Limited as successful bidder were not available. It is -J14- contended that 1n the absence of the aforementioned minutes , there 1s clear procedural impropriety in the decision -making process. 31. The Respondent in response submitted that the affidavit in issue was sworn by the Registrar of the University as Secretary of the Caretaker Committee. The said affidavit sets out the reasons why the minutes of the two committees were not produced at Court at the time of trial. The Appellant had not shown in what manner this decision was procedurally wrong. 32. In response , the appellant submited that the mere fact that a deponent of the committee that made the decision swore an affidavit to that effect, cannot be a substitute for not making the minutes available. As a public body Copperbelt University should have made the minutes available. As it stands , the appellant does not know on what basis it was unsuccessful. DECISION OF THE COURT 33. We have considered the appeal, the arguments advanced and authorities cited. Though four grounds of appeal are raised, the issues raised are essentially the same or interrelated and will be dealt with accordingly. ISSUES ON APPEAL -JlS- 34. In our view, the issues for determination are as follows: (i) Whether the decision by the Respondent to choose G & G Bakery as the successful bidder is Wednesbury Unreasonable/ Irrational. (ii) Whether there was procedural impropriety/ unf aimess in the decision making process. (iii) Whether the decision was illegal. 35. The facts not in dispute are that the Respondent had issued an advertisement in the Times of Zambia inviting bids from the public for the purchase of Plot 5880 Riverside , Kitwe. As earlier stated, preference was to be given to bidders who espoused National and Community Strategy Priorities as well as incorporating corporate social responsibility in the overall development of the plot. Subsequently, five entities including the Appellant tendered their bids, explaining their intended use of the plot. 36. Prior to the advertisement issued to the public, the Respondent had sought authority from the Ministry of Education to sell the land in issue. Authority was duly granted to the Respondent by the Minister of Higher Education. The Appellant and G & G Bakery Limited bid the purchase price of Kl, 000,000. All the bidders were invited -J16- to witness the unsealing of the tendered bids. Thereafter, committees were constituted to evaluate the bids. Upon evaluation, G & G Bakery Limited was chosen as the successful bidder. LAW ON JUDICIAL REVIEW 37. Judicial Review, as correctly submitted by the parties, is concerned with reviewing the decision-making process of the impugned decision. It is not concerned with the merits of the decision in respect of which the application for judicial review is made, but the review of the decision-making process itself. The purpose is to ensure that a person is given fair treatment by the authority. It is not for us as courts to substitute the opinion of the judiciary for that of the public authority that made the decision. We refer to the learned authors of Halsburys Laws of England 4 th Edition Volume 1 where Judicial Review is defined as a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of tribunals/bodies charged with performance of public acts and duties. 38. The grounds upon which the administrative action is subject to control by way of Judicial Review are threefold, namely; -J17 - illegality, wednesbury unreasonableness and procedural impropriety. A decision of a tribunal/public body exercising statutory discretion can be quashed on account of the aforementioned grounds. 39. Before dwelling into the issues for determination, we shall first address the argument raised; whether at all the Appellant did challenge the decision-making process of the Respondent declaring G & G Bakery Limited the successful bidder. Paragraph 8 of the statement on Ex-parte Summons for leave to apply for Judicial Review clearly stated that the "Applicant believes that the decision-making process which led the applicant being declared unsuccessful and G & G Baking Limited successful was clearly irrational and unreasonable .... " Therefore, the appellant did challenge the decision-making process itself. 40. We now revert to the issue of whether the decision by the Respondent was wednesbury unreasonable. A decision of a tribunal/public body exercising statutory discretion can be quashed on ground of irrationality, that is, where a decision 1s so perverse that no reasonable body properly directing itself could have reached such a decision. Irrationality /Wednesbury unreasonableness includes a ., decision which lacks logic or is made without any justifiable -J18- justification. See the learned authors Grahame Aldours & John Alder's book entitled "Applications for Judicial Review, Law and Practice of the Grown Office". 41. The standard Wednesbury formula laid down in the case of Associated Provincial Pictures House Limited (supra) defines irrationality as a "decision so unreasonable that no reasonable body would have made the decision". 42. We have considered the decision-making process impugned by the Appellant, whether the decision in question was one which a reasonable authority could reach. Was the impugned decision objectively devoid of any plausible justification that no reasonable body of persons could have reached it or verged on absurdity? 43. We have looked at all the material before us, the circumstances of the case earlier alluded to in respect of the bids, evaluated by the Respondent's constituted committees. We refer to the Bid Evaluation Report for the sale of Plot 5880 Riverside at pages 65- 68 of the record. The bids were evaluated by the team com posed of the Director PPS Business Development Manager, Resident Engineer and -J19- Planning Office. The criteria for evaluation were stated and the result of the individual scores by bidders were indicated. Upon the basis of the best evaluated bids, the committee recommended that G & G Bakery Limited be offered the sale of the plot based not only on price criteria, but national and strategic priority and wealth creation within the Riverside community basis. 44. The committee under reserve bidder proposed that in the event G & G Bakery failed to meet the conditions of payment, the offer should be given to the Appellant who equally bid the off er sum of one million K wacha. 45. We are of the view that the decision by the Respondent is not one which no reasonable person/ tribunal could have arrived at or devoid of any plausible justification that no reasonable body of persons could have reached them. There was transparency in the decision-making process and fell within a range of possible acceptable outcomes. Having not found the decision impugned to be outrageous and in defiance of logic, we find no merit in this contention. 46. The second point to be considered and determined is the alleged issue of procedural impropriety /unfairness. -J20- • Procedural impropriety encompasses the right to fair hearing, the rule against bias and procedural ultra vires. 4 7. The appellant alleges procedural impropriety on the basis that the minutes of the Development and Caretaker Committees adopting recommendation of the evaluation committee were not in existence and were not produced at the time of the hearing of the judicial Review. This robbed the trial court of material upon which it would have formed a decision as to whether the decision-making process was properly done. 48. It is not in issue that the minutes of the Development and Caretaker Committees adopting the recommendation of the Evaluating Committee to choose G & G Bakery Limited as the successful bid was not produced before court. The Respondent stated that at the time of the hearing of the matter in the court below, the said minutes were not ready. 49. Would the absence of the above minutes be said to be a procedure impropriety, warranting the quashing of the decision by the Respondent? 50. We hold the view that this cannot be termed procedural impropriety. The Respondent followed all the procedural -J21- requirements. They invited bids from the members of the public, which were duly evaluated, and G & G Bakery was recommended as successful bidder by the committee. All the bidders were treated fairly. The bids were opened in their presence after being notified of the unsealing. 51. There was no alleged biasness on the part of the committee members in the decision-making process. The decision of the Respondent was communicated to the Appellant and other bidders. We therefore reject the contention that there was procedural impropriety. Even in the absence of the minutes of the two committees upon which the decision was made, there was sufficient material upon which the trial court formed its decision regarding the decision-making process of the Respondent. 52. In respect of the issue of illegality, the Appellant argues that the Respondent did not give effect to the law regulating its decision-making power pursuant to the Higher Education and University Act. 53. Illegality is divided into two categories, i.e whether the public authority was not empowered to take action or make the -J22- decision it did and those that relate to whether the authority exercised its powers properly. 54 . Though the Appellant alleges infringement of the Higher Education Act, it does not elaborate and state the specific provision of the law which is ultra vires the decision. We have perused the Higher Education Act. The Respondent sought authority to sell the property in issue and followed the procedures by inviting bids from the public as earlier stated. We have evaluated whether the decision is illegal by construing the content and scope of the instrument conferring the power upon the Respondent to sell the property in issue and attendant procedures. The Respondent acted within its powers and duties. 55. A proper construction of the impugned decision and the Act leaves this Court in no doubt that the Respondent's action is firmly grounded on the law. We hold the view that the court below was on firm ground by finding no illegality in the impugned decision-making process. The Appellant had not demonstrated that the Respondent acted ultra vires its statutory mandate or illegality. Indeed, the Appellant sought/ seeks to overturn the decision on the merits. This as a court we cannot delve into . ~· • CONCLUSION -J23 - 56. The grounds of appeal having failed on account that there was no wednesbury unreasonableness , illegality or procedural impropriety in the decision-making process by the Respondent, we accordingly dismiss the appeal. Costs follow the event. F. M. Chishim ba COURT OF APPEAL JUDGE I , I P. C. M. Ngulube COURT OF APPEAL JUDGE ........................................ M. J. Siavwapa COURT OF APPEAL JUDGE I