Competition and Consumer Protection Commission v Omnia Fertilizer Zambia Limited and Anor (APPEAL NO. 205 /2014) [2017] ZMSC 300 (28 September 2017)

\/ v • t Selected ,Judg m e nt No. 5 L )f 2017 '1 c. ,n . ., .1. U -;;t.l IN THE SUPREME COURT OF ZAlVfBIA BOLDE I~ AT LUS. AKA (CIVIL JURISDICTION) APPEAL NO. 20E /201 4 1 1 l BETWEEN: OI\/INIA F'ERTILIZER Z. AMBIA LIMITED I\TTYIOMBO INVESTME:NTS LIMITED 1 ST RESPONI ENT 2ND RESPON I El'TT COP'1\M : MA1'11BILI1V1A, CJ, KAOMA AND KAJIMANGA, J~rn On 11 tn July 20 17 and 28th September 2017 For the Appellant: For the R esp ondent: I. \ No app e a r ance Mr. A. J . Shonga, Jr. SC, Mr. ~. Lungu and l'l.ir. M. Ng'ambi, of Shan1w 1 1a. and Company J ·u :DGlVIENT MAMBILIMA, CJ delivered the Judgment of the Cou:rt. AUTHORITIES REFERRED T O : 1. THE ATTORN EY-GENE:R.1\L A ND ANOTHER V. LEWANJ R ::\ AND OTHERS (1993-1 994) ZR 164 J2 · ~DOLA C ITY COUNCIL V. CHARLES id\VANSA (1994) ZR 128 3 · NGOMA AND OTHERS V. LCM C01V1PANY AND ANOTHER ( 1·)99) ZR 22 4 . ZAMBIA WILDLIFE AUTHORITY AND OTHERS V. :n:n. JTEETA COIVIMUNITY RESOURCES BOARD DEVELOPN1ENT CO-OPE 'RATIVE SOCIETY (2009) ZR 159 . 5. WILSON i\/IASAUSO ZULU V. AVONDALE HOUSING PHOJECT LIMITED (1 982 ) ZR 172 6. ZAN1BIA DE1vlOCRATIC CONGRESS V. ATTORNEY GENERAL (2000) ZR6 7. BUCH1'.1AN V. THE ATTORNEY GENERAL (1993-1994) ZR 131 8. ATTORNEY GENERAL V. K. C. CONFECTIONARY LilVHTED (1986) LAW REPORTS OF THE COMiV10N.\VEALTH AT PAGE 172 9. SOUTH OF SCOTLAND ELECTRICITY BOARD V. BRITISH cnNTRAL ELECTRICITY AUTHORITY V. BRITISH OXYGEN CO. LTD (1956) 3 . ALL ER 199 10. INLAND REVENUE COMMISSION V. ROSS AND COUNTER (1948) 1 ALL ER. 616 11. ANDERSON KAMBELA MAZOKA AND OTHERS V . LEVY PATRICK M. WANAVlASA AND OTHERS (2005) ZR 138 12. JCN HOLDINGS LIMITED, POST NEWSPAPERS LIMIT:'.:~D AND MUTElVIBO NCHITO V. DEVELOPMENT BANK OF ZAl\llBIA (2'·113) ZR 13. ARISTOGERA~MOS VANGELETOS AND ANOTHER V METRO INVESTiv:IENT LIIVlITED AND OTHERS, SELECTED JUDGMEi'I'~' NO 35 OF 2016 LEGISLATION REFERRED TO: a. COMPETITION AND CONSUMER PROTECTION (TRIBUNAL) RULES, STAT UTORY INSTRUIVIENT NO. 37 OF 2012 b. COIVlPETITION AND CONSUNIER PROTECTION ACT NO. 24 or 2010 c. COMPETITION CONSUMER PROTECTION (GE,NERAL) AND REGULATIONS, STATUTORY INSTRUMENT NO. 97 OF 2011 d. R ULES OF 'fHE SUPREIVIE COURT, 1999 EDITION ('WHITE B,J ·)K) e. H IGH CO URT RULES, CHAPTER 27 OF THE LAWS OF ZAMBU . f. SUPREI\'IE COURT RULES, CHAPTE R 25 OF THE LA~/S OF Z. AMBIA g. CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2(P.6 OTHER AUTHORITIES REFERRED TO- i. OXFORD CONJPACT THESAURUS, 3RD EDITION, (2005) ii. BLACK'S LAW DICTIONARY, 10TH EDITION, REUTERS; UNITED STATES OF AMERICA, BRYAN A. (EDITOR IN CHIEF) (2009), TB OMSON (:ARNER iii. HALSBURY'S LA\VS OF ENGLAND 4TH EDTION VOLUJ-/IE 10, PARAGRAPHS 717 AND 745 This is an appeal from a judgmen t of the High Court de livered on 4 th September 2014. The said Judgrnent followed an a~')~~)eal by the Appellant from a decision of the Competition and Consumer Protection Tribuna l (hereinafter referred to as "the Tribunal") rendered on 3 rd Septe mber 20 13. The facts of this case are simple and substantially not in dispute . On 16 th Oc tobe r ? 012, the Appellant conducted \vhat it referred to as a dawn ra id at the 1 s t Respondent's premis es and collected various items. On 6 th November 2012, the A.:r:-pellant issued the 1 s t Respondent with a Notice of Investigation (hen~inafter sometimes refe rred to as the Notice). We h a ve re produced trlc Notice la t er in this Judgment. It suffices at this point to say that the Notice informed the 1 st Respondent that the Appellant had o fficially cornmenced investigations against it. The Notice vvent on to r, :quest J4 the 1st Respondent to respond to that Notice within 14 days of receiving it. The Notice of Investigation was served on the 1 st Resr ondent on 8 th November 2012 . The 1 st Respondent did not respond to the Notice. Instead, on 22 November 2012, it lodged an appeai to the Tribunal against the Notice and served the Notice of Appe2J on the Appellant on 23rd Noven1ber 2 012. In the m eantime, on ?3 rd April 2013, the Appellant p:·c-ceeded to r ende r its decision on the investigations it carried out. On 3 rd June 2 01 3, the Appellant served a copy of its decision on the 1st Respondent. This prornpted the 1 st Respondent to mc·.ke an application to the Tr ibunal pursuant to rule 19(1) of the COIVIPETITION AND CONSUMER PROTECTION (TR;,J-;UNAL) RULES1aJ. In that application, the 1 st Respondent contencl '~d that the Appellant acted in contravention of the COMPETITll).jf AND CONSUMER PROTECTION ACT1bl (hereinafter referred to .:1.s "the Act"), when it procee d e d to investigate and render its decisi .)n in a 1nat ter '\vhich had b een appealed against to the Tribunal. The 1 st JS Respondent asked the Tribunal to set aside the decision of the Appellant. After considering the submissions of Counsel frorn both parties, the Tribunal held that the Appellant acted in contravention of Section 55(11) of the Act when it proceed ed to investigc=.te a nd r e nder its d ecision when there wa s an appeal pending b(.f ·)re the Tribuna l on the same issues. The said Section 55 (11) provide s that- "55( 11) The Commission shall not investigate a matter that is before the Tribunal unless the Tribunal directs otherwise." The Appellant was dissatis fied with the decision of the Tribunal and a ppealed to t.hc lower Court on the following grounds that: - 1. the Tribunal erred both in law and in fact by finding tha1 on the available evide nce b efore it the Appellant investigated a matter that w as before the Tribunal on appeal; 2. the Tribunal erred in law and nlisdirected itself by failing to take into account the evidence filed to support the positi )Il that investigations had already taken place by the time the apJ !eal was lodged; and 3 . the Tribunal erred both in law and in fact by finding that Section 55(11) of the Competition and Consumer Protection Act No. 24 of 2010 operated as a law or lawful order to stop the AppeF.a nt from making a determination under the circumstances of this c a.se. The lo\,ver Court consider ed the facts of the ca ! e , the proceedings before the Tribunal, the judgrnent of the Tri bun a t and J6 the subrnissions of Counsel and came to the conclusion tl1at the intention of the prov1s1ons of Section 55(11) 1s that any investigation, enquiries and analysis of any sort being un<l<~rtaken by t he Commission against an affected party, should be suspended after an appeal has been lodged before the Tribunal, ur.11:ss the Tribunal directs otherwise. The Court agreed with the Tribur .. al that aithough ~investigation' and 'decision' entail different thinrs, they are related and one cannot exist \Vithout the other. The Cou :~t went on to say that there \Vas no evidence to show that the AppeJlc .. nt had curnpleLed investigations by 22 1 ·" November 2012; when th:~ appeal \Vas lodged \Nith the Tribunal. With regard to the argument by the Appellant that j t issued the Notice pursuant to Section 55(6) of the Act after it had completed investigations, the Court stated thal the Act requ:: res the Notice to be issued for the purpose of affording the person r> .. ffected an opportunity to be heard. The learned trial Judge sta ted that Section 55(6) did not imply that the Commission should inv, ·stigate nnd condernn a party unheard. She held the vie\v that even ~ here J7 the Notice is issued under Section 55(6), all the necessary stages in investigating a person or an enterprise and rendering a dt~cision, have to be adhered to. The lower Court went on to hold that whatever sect:on the Notice was issued under, at the point that the appeal was lodged, everything p ertaining to the investigations ought to hav e been s uspende d r egardless of the stage at which the investigations had reached. The lowe r Court a greed with the Tribunal that by the bme the Appellant was lodgi ng its grounds of objection to the Appea_·, before the Tribunal in Decembe r 2012, the matter ,;,,vas still at inve·, 0 .igation stage. According t.o the Court, this was clearly admitted by the Appellant in its grounds of obj ection to the appeal. Coming to the issu e r elating to conflict of interest al}e _5ations against the Vice-Chairperson of the Tribunal, the lower Court expressed the opinion that the Appellant did not show tJ 1at the Vice-Chairperson ,;,,vas in a particular situation where her J8 impartiality 1n taking part 1n the Tribunal proceedings might reasonably be questioned. In conclusion , the lower Court upheld the decision of the Tribunal. It is against the above decision of the lower Court t ] 1at the Appellant has now a ppea led to this Court advancing the fc llowing gr ounds of appea l: 1. that the learned trial Judge erred in law and in fact ,;-.,'1.en she held that the Appe llant had continued to investigate t:t·e mat ter after an appeal h a d been lodged by the Respondents v ith the Competition and C onsumer Protection Tribunal; 2. that the l ear n e d t rial Judge erred in law and in fact '<V:.1en she held that t h e Re sponde nts had not been given an oppor t 1 .!.nity to be heard before t he decision of the 13t h April, 2014 by t .h ~ Board of Commissio ne r s for the Competition and Consumer P-.rc:itection Tribuna l; 3. that the learne d t rial Judge erred in law and in fact i..:.,>1en she found that the statement made by the Appellant that tht· matter was still at investi gation stage meant that the Appellant had not concluded investigations at the time the Respondents fr dged in the appeal b efore the Competition and Consumer P:rc,tection Tribunal; 4. that the le arne d trial Judge erred in law and rnisdi:rectec herself .:or the in fact when s he held that the Vice-Chairperson Competition and Consumer Protection Tribunal ··.vas not conflicted as provided for in the Judicial (Code of Cond.1:· et) Act; and 5. that the learned trial Judge erred in law and in fact ~-7. -ten she joined the 2 nd Respondent to the Proceedings when they had not J9 'been party to the appeal and throughout the proceeding.~. before he:r. In support of these grounds of appeal, the learned Cou: 1s el for the Appellant filed written heads of argument in wh •;_ch he abandoned the fourth ground. He argued the first and third grounds of appeal together. Counsel submitted that the whole of Section 55 of tht· Act is dedicate d to investigations and determinations by the Con1J ,etition and Consumer Protection Commission, the Appellant herein. That Sub-S ection 11 of t h e said section prohibits the Commiss:te n from jnvestigating a m atter tha t is before the Tribunal 'un te ss the Trlbuna l otherwise directs.' He contended that w!-i :n the Appellant undertook a d a wn raid on the premises of t he 1st Respondent on 16 th October 2012, they were, in fact, inve·:,·,·igating the Respondent's conduct. Counsel referred to Section <J ( L )(a),(b) and (c) of the Act which provides as follo\vs: - "9. ( 1) A horizontal agreement between enterprises is prohfb ~ted per se, and void, if the agreement - (a) fixes, directly or indirectly, a purchase or selling price or any other trading conditions; (b) divides markets by allocating customers, suppliers or tlf.r-itories, specific types of goods or services; I ' I I. I HO (c) involves bid rigging, unless the person requesting thf, bid is inforn-1ed of the terms of the agreement prior to the makin·•; of the b .d " •.•• He submitted that the horizontal agreements prohibited in 3ection 9(l)(a),(b) and (c), are concerted and cartelistic in nature. Th2 t for this reason, it is critical that any investigation, particut ~rly an investigation like the one undertaken by the Appellant '.n this matter, ,,vhere evidence had to be sourced from the ver; e1n erprise under investigation is undertaken discreetly. According to Counse l, the nature of the \\rrongful acts alleged to have been committed by the Respondents entailed that the investigation had to be con ducted under Section 55(6) of t ie Act, which empowers the Appellant to defer the giving of the TJ,)tice of Investigation where it h as reason to believe that the giving .) · notice would prejudice the investigation. He pointed out, however, that the format of the Notice of Inves tigation prescribed unc 1.er the COMPETITION AND CONSUMER PROTECTION {GE~1:fERAL) REGULATIONSldl, does not distinguish between pre-inves:·igation notification and post-inves tigation notification. ji 1 Counsel further submitted that the Appellant ga •. Je the Respondents fourteen days within which to respond to the Notice of Investigation as prescribed by law. That at the close of the fc ,urteen days, the Respondents stood predisposed to prosecutio~1 under Section 55(5) of the Act, for contravening Section 55(4) of th :; same Act, because the evidence obtained by the Appellant durng the dawn raid was conclus ive and remained undisputed ·JY the Respondents since they did not respond to the No :ice of Investigation. That for this reason, the Appellant did not r·1 sdirect itself by rendering the de c is ion without conducting further ' I· ! I I r. investigations . Counsel also referred us to the meaning of the \~lord "dt:cision" in the OXFORD COMPACT THESAURUS, 3RD EDITION, (~:OOS)!il, in which the authors h ave defined that word to m ean- "resolution, adjudication, recommendation, pronouncement, order, findings and result." commitment, finding, determination, settlement, conclusion, verdict, resolve, ruling, He was a lluding to the views of the Tribunal on pages 6 J -61 of the record of appeal vvhich, after considerin g the various de1 i1 titions J1 2 ascribed to the words 'investigation' a nd 'decision' stated, among others, that:- "The two words therefore are related and it is often di·ff ·.cult to distinguish them although the meaning is different." He submitte d that going by this meaning of ttH · word "decision" in the Oxford dictionary, it is clear that at the r ·oint of rendering the d ecision, the Appellant was doing something totally different from investigating. That the Court below, therefo::c, erred to have upheld the Tribunal's position that 'investigation' and 'decision' b e taken to m ean the same. According to C .)Unsel, Section 55( 11) of th e Act, whic h deals vvith 'investiga tions', cannot be exte nded to inc lude d e terminations or decisions. To butt ress his argument, Counse.l r efe rred to our d ecision in the case ( >f THE ATTORNE'Y-GE1'1ERAL AND ANOTHER V. LEWANIKA AND OTHERS( 1l, where we stated that- "If the words of the statute are precise and unambiguous: :hen no more can be nece ssary than to expand on those words :·.n their ordinary and natural sense. Whenever a strict interpretati-:n1 of a statute gives rise to an absurdity and unjust situation, tht judges can and should use the ir good sense to re1ne dy it by readin ~ words in it, if necessary, so as to do what Parliament would have d ,ne had they had the situation in m ind''. J13 He argued that in the context of section 55 (11) of the \et, no absurdity arises from the strict interpretation of that provis _on, for there to be a n eed for further elaboration as to the true in t, ~1 t tion of the Legislature. Counsel contended that in the circumstances of tr:-.i > case, what the Respondents should have done wa s to apply for ; t stay of execution of the decision of the Appellant, since the Respo :_1dents' appe a l fell outsid e the ambit of Section 55 (11) of the Act and it could not operate as a s tay of execution as provided unde1 Order 59, rule 13 of the RULES OF THE SUPREME COUR'T. 1999 EDITIOl\J (WHITE BOOK)'c1, which states that- "13(1) Except so far as the Court below or the Court of App~al or a single judge may othe rwise dire ct- (a) An appeal shall not operate as a stay of executin1 : or of proceedings under the decision of the Court below ... '' It v.ras Counsel's further submission that for the Court to )·1ve an :> Orde r for stay of execution, the party seeking that relie :~ must specifically plead for it, as was h eld in the case of NDOI 1J \. CITY COUNCIL V. CHARLES MWANSA121 , \. Vhere \. Ve also stated, a mong others, that the Court's decision in this regard is discretioncLJ y. J14 On the issue as to whether the matter \Vas still at inve 3· igation stage when the 1 st Respondent lodged its appeal with the Tr tbunal, Counsel maintained tha t at that point, the Appellant had c or .eluded its investigations. Coming to the second ground of appeal; the k e: ·nel of Counsel's submissions was that the Appellant gave 1 he 1 s t Respondent a Notice of Investigation and requested it to r espond to the Notice \Vithin fourteen days . That the learned trial Judge there fore, e rred when s h e found that the Respondents Yv, ~re not given an opportunity to be h eard. On the fifth ground o f appeal, Counsel subrnitted chat the learned trial Judge e rred in la w and in fact, \. Vhen she joined th e 2 nd Respondent to the proceedings at the point of cle liveJi 1g her judg1nent when it had not been a party to the app e 11 a nd throughout the proceedings . That while it is trite law that th• '. Court has jurisdiction to order both non -joinder and misjoinder of parties unde r Order 14 Rule 5 ( 1) of the HIGH COUR1." RULES1f1, c; lSe law has shovvn that where a party has s u fficient interest in a car. J -,e, J15 r I they may apply to be joined even where judgment has alreac ·y been rendered. Counsel also ref erred us to the case of Z Alv.tBIA WILDLIFE AUTI-IORITY AND OTHERS V. lV.fUTEETA COMN . UNITY RESOURCES BOARD DEVELOPiV1ENT CO-OPEf ATIVE SOCIETY141 , where it was stated that a party intending to jojr.- a case must state if they are opposing, supporting or coming as fri :::nds of the Court. He argued that since the 2 nd Respondent had i~ iicated , · its desire to b e joined to the proceedings to oppose the appt.~al, the Court ought to have formally given an order for non-joinder, so as 10 e nable the partie s conch,1siveiy deal with all the issues surrounding the case. According to Counsel, a search on t:--1 ~ court record showed that there was no such order. I-le, therefore, argued that the joining of the 2 nd Respondent by the learned tria] Judge was irregular as it was not made in conformity with th e legal prov1s1ons. In response to the submissions on behalf of the Appellc :.nt, the learned Counsel for the 1 s t Respondent filed \Vritten ht ads of argument on 29 th June 2017. In the said heads of argumen,, I 1 ,: .1.v , Counsel indicated that he would only respond to the first, second and third grounds of appeal but not the fifth ground, becaus~ it was directed to the 2nd Respondent. On the first ground of appeal, Counsel argued that non•~ of the grounds of appeal filed by the Appe llant had challenged the finding by the lowe r Court that there is a link between the pro ~ess of investigation a nd the decision m a king process. That since 1 here is no dispute that the process of investigation is linked to the j)rocess of re ndering the d ecision, the d ecision should not hav; been -re ndered on ce the appeal h ad been lodged before the Tr ibunai, except with the p erm iss ion of the Tribunal. Counsel stre:,! .ed the fact that an inquiry into whe th er the Appellant conti:1 .1ed to investigate the matter whilst the a ppeal vvas pending bef. )re the Tribunal, is unnecessary because the learned trial Judge .1lready found that Section 55(11) of the Act did not allow the AppeJant to legally continue to render a decision whilst the appeal was pending before the Tribunal, without first obtaining the permission of the Tribunal. In Counsel's view, since the Appellant has not lodg, ·d an Jl 7 appeal against the learned trial Judge's finding that th·~ ·e is a connection between the process of investigation and the ci ecision n1.aking process, that omission condemns both grounds ,) 1e and three to failure. Counsel submitted in the alternative, that the findin,s by the learn e d trial Judge, that the Appellant could not have conc:'L ded its investigations by the 22nd November 2012, was a finding of fact which this Court can only interfere with on limited groLr .ds. To support his submission, Counsel relied on, among others, t]1e case of ·w'ILSON lViASAUS O ZULU V . AVONDALE HOUSING Pr, .'JJECT LIN.lITED151, where \VC said that- "The appellate Court will only reverse findings of fact rn :t :le by a trial Court if it is satisfied that the findings in question W f I = either perverse or made in the absence of any relevant evidence 01 upon a misapprehension of the facts." Counsel contended that the Appellant h as not establish .. ~d that the finding of fact which they seek to assail was p erverse, rnade in t h e absence of a n y relevant evidence, or based on a 111isapprehension of facts. In Counsel's opinion, there vvas su Iicient J18 I . evidence to support the finding of fact made by the learn, ·d trial Judge. Coming to the second ground of appeal, Counsel raisei quite an interesting argument. He contended that the Appellant'~ heads of argument did not identify the relevant portion of the Jn 1 lgment appealed against, which formed the basis of that ground o:· 3.ppeal. To support his contention, he referred us to a portion of t.~ -~ lower Court's judgment, appearing on page 45-46 of the record, ~r which the Judge stated as fo1lov.1s :- lodged to have I find that the Appellant could ::1nt have "From the forgoing, concluded their investigations by the 22nd November 2C 1 2 when the Respondents Also, the Ap1.,ellant's the ir appeal. the investigations ought Respondent's response on the allegations. That not'witfr-E:anding, even their investigations into the matter the _fact __ that the Responce -:its had not been heard on thc_i:iotice to investigate and more ·especinlly that the Respondents had lodged an appeal, the Appellant oug:h.'~. not to have proceeded to render its decision on the matter. By d0ing so, the Appellant was endeavouring to supersede the appeal ··1earing. (e mphasis by Counsel) as~uming ____ t~at . _JJ1e __ _ .t\p_p_eUant had included an concludec_ inquiry :r.~to To use Counsel's ov.rn words " .... we suspect that it is the underlined text from the extract above that for--n 1s the i-lppelZant's gravamen." J19 According to Counsel, the lower Court, 1n this t :xtract, confirmed that the Appellant could not have conch::_( ed its investigations by 22nd November, 2012. In Counsel's opinio:n the words that the Appellants were relying on as the basis for the second ground of appeal, were offered by the Judge on tt e clear assumption that the Appellant had, for argument's sake, cc r eluded its investigations into the m a tter. Counsel further argued t 1at the second ground of appeal app ears to have been predicated l.lpon the success of the Appellant 's first and third grounds of ap"'J ~al. He submitted that if the tv.ro grounds fail, the effect will be tl:-at this Court will be agreeing with th e finding of the Court below t~at the Appellant had not concluded its investigations a s at the d a.t:~ when the Respondent launched its a ppeal to the Tribunal. He thu:; urged us not to dwell on the second ground of appeal if we dis:r iss the first and third grounds. On the other hand, Counsel s111 )mitted that if the first and third grounds of appeal succeed, his arg·ument, in the alternative, is that what the lower Court was saying ·.:vas that the Appellant ought not to have proceeded to render its decj .3 on for f I \ I I i \ I \ ' l \ J19 According to Counsel, the lower Court, 1n this 1 -xtract, confirmed that the Appellant could not have conch.\c" ed its investigations by 22nd November, 2012. In Counsel's opinio:n the vvords that the Appellants were relying on as the basis fo r the second ground of appeal, were offered by the Judge on t 1-. e clear assumption that the Appe llant had, for argument's sake, cc r eluded its investigations into the matter. Counsel further argued t 1at the second ground of a ppeal appears to have been predicated 1. Lpon the success of th e Appella nt's first a nd third grounds of apYJ :".al. He submitted that if the two grounds fail, the effect vvill be tt-at this Court will be agreeing ·with th e finding of the Court below th.at the Appellant had not concluded its investigations as at the d 2.t;~ when the Responde nt launched its appeal to the Tribunal. He thu'.> urged us not to dwell on the s econd ground of app eal if we dis:r iss the first and third grounds. On the other hand, Counsel s111 )mitted that if the first and third grounds of appeal succeed, his arg·:.1ment, in the alternative, is that what the lower Court was saying ·_;vas that tt1e Appellant ought not to have proceeded to render its decj .3 on for J2l our d ecision in the case of ZAIVIBIA DEMOCR..!\TIC CONGI~ ·SSS V. i\.'".f'TORJ\JEY GEI\TERALl6l, vvhere we said that- "As a matter of p ractice, this Court disapproves being eLf aged in academic exercises ... " With regard to the third ground of appea l, Counsel s1. t"I 'imitted that his understanding of the submissions by the Appc] .ant in s upport of the third ground of appeal, was that the Cou c belo\.v erred in findin g that the statement made by the AppeLant in paragraphs 2 and 3 of the Notice of Grounds of Oppositior:: to the A.noeal filed before the Tribunal, amounted to an admissinn that .... - investigations vvere still on-going as at 6 th December 2012. Counsel submitte d that the finding by the learned trial Judge in th js regard was not a finding of law but purely a finding of fact. 'That the Appellant did not establish a ny basis upon vvhich the said fir ding of fac t could b e interfere d with. Counsel went on to submit that even assuming that 1 t e third ground of app eal was cap able of b eing entertained by thjs Court, t·h e statements contained in paragraphs 2 a nd 3 of the Ap f:' ~llant's Notice of Grounds of Opposition to Appeal '\Vere correctly int~ ·preted I I I I I \ I I J22 by the lower Court. Counsel went on to submit that acccr ::ling to what the Appellant stated in the said paragraphs, a~-: at 6 th December, 2012, the rnatter was merely at investigation stat~t··. The 2 nd Respondent did not file any h eads of argument. When the appeal cam e up for hearing b efore us on 1. ~ th July 201 7, we asked Counsel for the 1 st Respondent to address 1.,~-~- on the issue as to whether one can, under Section 60 of the Act, appeal against the issuance of a Notice of Investigation. After belabouring the point, Counse l applied for an adj ournment in orde i: to file s upplementary heads of a rgum ent to address us on the leg~ J issue that we h ad raised . We a djourned the matter for j1.,1dgm<·nt but granted Counsel leave to fil e s upplem entary h eads of ar;~ument within 14 days and the sam e were filed on 25 t h July, 2017. In the meantime, the learned Counsel for the Appella nt, vvho w a s not in attend ance at the h earing of the appeal, 1.v :·ote to requ est, a nd was furn ished with the verbatim record of the proceedings of 11 th July 2 017. Upon perusal of the proc e ~dings, b e a lso filed s ubmissions on the legal iss ues that the Court r; ~ised J23 on 25th July 2017. We have taken the Appellant's sub:r i.ssions I ! , into account in this judgment in the spirit of Article l 1?3(2)(e) of T:f-IE CONS~fITUTION OF ZAMBIA {AMENDMEl'JT) ACT:n which states that 'justice should be administered without undue regard to procedural technicalities ... " In view of the C: ecision that we shall make, we n eed to hear both sides. In their supplementary heads of argument, Counsel for the 1 st Respondent, contended that the legal issues raised by th i~ Court were novel in the sense that they did not arise both be f )re the Tribunal and the lower Court; and, that they did not form part of the grounds of appeal set forth by the Appellant in its Memc,r andum of Appeal. Counsel submitted tha t it is a well settled principl1 · of law that on a ppeal, a party cannot raise an issue vvhich was nu1 raised in the lower Court. For this argument, Counsel referred us to, among other . authorities, the case of BUCHMAN 11 THE ATTORNEY GENERAL7 , where this Court held that- "A matter not raised in the lower Court cannot be raised in , ·. higher Court as a ground of appeal." J24 Counsel, however, conceded that this position does not 1 )ply to points of law not raised in the lower Court. To butt ('t · ss his a rgument, he cited, among others, the decision of the C Jurt of Appeal of Trinidad and Tobago, in the case of ATri"'f)RNEY GENERAL V. K. C. CONFECTIONARY LIIV. CITED8 in which it held that:- "On appeal, a point of law not argued in the Court below c ould be taken subject to certain limitations, name ly, that the C- .:,urt of Appeal was satisfied that it was expedient in the interest (J~- justice to entertain the new plea, that it could do so without inj-u·3tice to the other party and that the evidence on re cord was suffi,·;ient to enable the Court to dispose of the point raise d without hf.;-Ving to decide questions of fact ." Counsel a lso c ited a n extract from HALSBlJRY'S L il'JJS OF ENGLA~ND, 4TH EDITION, VOLUME 10g, where the learned c:uthors have said that: - "Jurisdiction as to points of law. The House of Lords has a duty to determine what ought to be done in the subject matter of an appeal. It therefore has a discretion to allow argurnents on poinb ; of law which were abandoned or not raised in the Court belo·w but is averse to doing so unless a refusal would result in injustice. )' To further buttress h is point, Counsel referred us to a 1 .umber of cases, an1ong \.vhich was the case of SOUTH OF SCf) rLAND ELECTR1CIT'Y BOARD V. BRITISJ-I CEN. TRAL ELECTRICIT l J25 P~UTHOR!TY ·v. BRITISH Oh7YGEN CO. LTD9 , where the I-1 )use of Lords said the following:- "This House sometimes entertains a question which has n<>t been argued in the Courts below when justice requires that it should do so, because there is no other means at hand by which the ~:uestion could be brought In StoLehaven Magistartes vs. Kincardineshire County Council (4} ( 1940 E . C {H. L) 56, it even entertained and decided on a point which 7-1: \d been judicial determination. to . expressly abandoned in the Court below." While Counsel agreed that this Court has the discn: tion to delve into and consider points of law not raised in lower ,·.=:ourts, they were, ho\A1ever, of the vie\v that the said discretion may not be exercised unless r e fu s al to ente rtain the nevv point of la--v would oc casion an injustice on the party raising it. They added t 1at the new point of law must be one that arises from the main iss"L:. es that were decided upon by the lower Court in the judgment or c-ecision appealed against. In this respect, Counsel invited us to ac:c ·~pt the reasoning of the Court 1n the case of INLAND R 1-~··1ENUE COlV!lVIISSION V. ROSS AND COUNTER 10 , vvhere it said th2_t- "It is not open to a party on appeal to raise a point of law '-'"<tich was not taken or argued before the cor.amissionexs and cannot be brought within any questions of law on which the opinior of the Court is asked in the stated case ." J2S IJ -~UTI--IORIT'Y ·v. BRITISH OXYGEN CO. LTD9 , where the I-I Juse of Lords said the fallowing: - "This House sometimes entertains a question which has n ,::,t been argued in the Courts below when justice requires that it should do so, because there is no other means at hand by which the c:_uestion could be brought In Stonehaven Magistartes vs. Kincardineshire County Council (4) ( 1940 E . C (H. L) 56, it even entertained and decided on a point which j:1; ,.d been judicial determination. to . expressly abandoned in the Court below." While Counsel agreed that this Court has the discn:. tion to delve into and consider points of law not raised in lower (~ourts, they were, ho\\1ever, of the vie\v that the said discretion may not be exercised unle ss re fusal to entertain the new point of la-.:v 'Nould occasion an injusti ce on the party raising it. They added t 1at the new point of law must be one that arises from the main iss1,; es that were decided upon by the lower Court in the judgment or c-~cision appealed against. In this respect, Counsel invited us to ac-c -~pt the reasoning of the Court 1n the case of INLAND RI~'·]ENUE COMMISSION V. ROSS AND COUNTER10 , vvhere it said th2.t- "It is not open to a party on appeal to raise a point of law ~-. J-Jch was not taken or argued before the cornmissioners and car.tnot be brought within any questions of law on which the opinior- of the Court is asked in the stated case." i \ J27 Court to prosecute their appeal. He contended that because'. of the non appearance of the Appellant at the hearing of this app,:al, the fate of this appeal should have been dismissal. That, th--_Tefore, there can be no injustice occasioned to the Appellant, if Htt ·: Court refuses to take the point of law when the appeal itself ought t '.) have been dismissed owing to the non-attendance of the Appel) 3.nt. In s·upport of these arguments, Counsel referred us to Rule .-, ( 10) of the SUPREME COURT RULESh, which provides that:- "71. ( 10) Subject to the provisions of rule 69, if on any day f lxed for hearing of an appeal- {H} th-e appellant does not appear in person <:Jr by p:ractiti '). ~el", the appeal may be dis:rr1i sse d; (b) the appellant appears, and any respondent fails to appt·~n· either in person or by practitioner, the appeal shall proceed in the; 1bsence of such respondent unless the court for any sufficient reasc .n sees fit to adjourn the hearing; (c) no party appears either in person or by practitioner, the appeal may be adjourned, struck out or dismissed." In Counsel's view, in the circumstances of this case, i1:;justice will be inflicted on the 1 s t Respondent if this Court consid ~rs the n e w legal issues. Counsel submitted that if this Court allo\; 'ed the appeal on the new legal points, the effect would be that d 1e time IJ provided for in Section 60 of the Act for the 1 st Responi ~e nt to challen ge the d ecision of the Appellant, would have elapsed . That J28 this would deny the 1 st Respondent the right to assert us legal rights. 'vVe hasten to say that we dealt with the issue concern i.ng the absence of the Appellant at the hearing of the appeal. Clearly Rule 71 (1 O)(a) of the Supreme Court Rules gives this Court discretion whether or not the appeal should be dismissed. We decided to proceed since v..,re had the heads of argumen·;: by the Appellant . Counse l wen t on to submit that this Court exercises zq pellate ·jurisdici:ion. That if this Court hears the issue of the statu.t of the Notice of Investigation, it will be determining a matter whict is still pending before the Tribunal. That instead of exercising a1 ·pellate jurisdiction, this Court will be drawn into exercising 1 )riginal jurisdiction and determine a n issue it can only entertain on 2 ppeal. To reinforce the above arg uments , Counsel referrej us to Article 125 of the CONSTITUTION OF ZAMBIA (AMEN·o ·MENT} ACTlil, v.rhich states that- " 125. (1) Subject to Article 128, the Supreme Court is t ·1e final Court of appeal. (2) The Supreme Court has- J29 (a) appellate jurisdiction to hear appeals from the Court of Appeal; and (b) jurisdiction conferred on it by other laws." Counsel also ref erred us to Section 7 of the SUPREME C~OURT OF ZA.1V.[8IA . ACT\ which provides that- "7. The Court shall have jurisdiction to hear and determin ·; appeals in Civil and Criminal matters as provided in this Act and su< h other appellate or original jurisdiction as rnay be conferred upo11. it by or under the Constitution or any other law." Counsel submitted that this Court should allovv the T .-ibunal to perform its statutory mandate as set out in Section 68 o -=- ::he Act which provides that- "68. The functions o f the Tribunal are to - (a) hear any appeal made to it under this Act; and (h) perform such other functions as are assigned to it under ,:his Act or any other law." According to Counsel, Section 68 (a) of the Act ackno, :1ledges that an appeal to the Tribuna l may be made at any st. J.ge. In Counsel's view, that provision does not envisage that on· y final decisions of the Appellant may be taken to the Tribunal. Counsel c ontended that an appeal to the Tribunal may be made ever before investigations are complete. That if the intention of Parliamcr t vvas J30 that only final decisions of the Appellant could be appealed c·.gainst, Section 55( 11) of the Act would have stated so. With regard to whether a party can appeal against the issuance of a Notice of Investigation, Counsel submitted tJ at this question too did not arise in the lower Court and no injustir:< would be occasioned to the Appellant if this Court does not adjuc1i :ate on it. In the alternative, Counsel asked this Court to give the 'N ')rds in Section 60 of the Act the ir ordinary meanings. In this regard, Counsel referred us to, among other cases, our decision in t:;1e case of ANDERSON KA1V1BELA lvIAZOKA AND OTHERS 'V. LEVY PATRICK i'II~lANA'WASA AND OTHERS 11 , where we said th3> "It is trite law that the primary rule of interpretation is th, t words should be given their ordinary grammatical and natural m t~c ning. It is only if there is ambiguity in the natural meaning of the v 1( rds and intention cannot be asce rtained from the words usec' by the legislature that recourse can be made to other prin;:;j ples of interpretation." Counsel argued that the purport of Section 60 is to .-11low a person or an enterprise that is aggrieved with any order or <lrection give n by the · Appellant, relation to investigatio ~ ; and determinations, to appeal to the Tribunal. Counsel referred ·Ls to J31 definitions of the words "order"· and "direction" contc:11ed 1n BLACK'S LAW DICTIONARYii. In Counsel's view, in its N, ,tice of Investigation, the Appellant directed or guided the 1 st Resper: jent to respond to the allegations levelled against it within 1 ~. days. Counsel submitted that Section 60 of the Act lawfully pern ..its the Tribunal to determine questions on any direction issue~. by the Appellant provided they relate to part VIII of the Act. In reply to Counsel for the 1 s t Respondent's suppler:tentary heads of argument, Counsel for the Appellant filed \tvritten h -:!ads of argume nt on 25 th July, 20 l 7 . Counsel started by givinr a. brief background to the e n ac tment of the Ac t and went on to re er this Court to the objectives of the Act as set out in the preamble to the Act. Counsel submitted that the parame ters of the objective:--. of the Act are as outlined in Section 5. That in conducting the dn.,vn raid against the Respondents on the 19 th of October, 2012, the Ar pellant \Vas simply carrying out the mandate conferred upo::1 it by Parlia 1nent, through the enactment of the Act, and in p .-1· ticular unde r Section 5(c) of the Act. J32 On whether a person or an enterprise can appeaL to the Tribunal against the issuance of a Notice of Investigation, C ounsel contended that the order or direction anticipated by Secti1Y1 60 of the Act was one that flowed from the Appellant's performanc( of one or more of its functions under Section 5 of the Act. He s111 jmitted that the Notice of Investigation was merely a communicatic1 of the institution of an investigation. That the Appellant had not rr c de any determjnation of the matte r. In Counsel's view, the AppeEc nt can only ma.ice an order or direcbon, capable of b eing appealed c gainst, after the conclusion of in vcs t igations as provided by Sectic u 55 ( 10) of the Act. Section 55( l 0) states th at:- "The Commission shall, at the conclusion of an investigatio .. 1 under this section, publish a re port of the inquiry and its concl-'l dons in such a manner and form as it considers appropriate." Counsel argued that the Appellant did not n1ake any c rd er or direction by issuing the Notice of Investigation. In his v it w, the appeal by the 1s t Respondent to the Tribunal was, th._~refore, prernature. Counsel stated that the 1 st Respondent could o·.:1 ~y h a ve properly a ppealed to the Tribunal after it received the App :;llant 's decision of 26 th of April , 2013. J33 With regard to the question of what constitutes an o '.-der or direction under the Act, Counsel referred us to the definition.; of the two terms in BLACK'S LAW DICTIONARyii. That ft e said Dictionary defines the word 'notice' as "a written or printed announcement .... " Counsel then argued that there can be no appeal against the making of an announcement to a party under investigation, informing them that an investigation ha:-; been commenced against them. He submitted that since the Arpellant did not make any order or direction in the Notice, the appe~ by the l s t Respondent to the Tribunal was incompetent anci must accordingly be set aside. W e have carefully considered the evidence on reco· ·d, the s ubmissions of Counsel and the judgment appealed against The learned Counsel for the Appellant argued the fi} st and third grounds of appeal together. It is clear that the decision of the Tribunal and thc:.1 of the Court below, vvere anchored on Section 55( 11) of the Act. This Section provides that- \ I f ~ \ I ' ; . I • \ \ . \ J33 I I I - I ! With regard to the question of what constitutes an o '.~der or direction under the Act, Counsel referred us to the definition. ; of the two terms in BLACK'S LAW DICTIONARY1i. That tl e said Dictionary defines the word 'notice' as "a written or l 1rinted announcement .... " Counsel then argued that there can be no appeal against the making of an announcernen t to a party under investigation, informing them that an investigation ha~-~ been commenced against them. I-le submitted that since the Ar pellant did not make any order or direction in the Notice, the apper:L by the l s t Respondent to t h e Tribui1al was incompetent a:cci must accordingly be set aside . We have carefully considered the evidence on rec:y ·d, the submissions of Counsel and the judgment appealed against The learned Counsel for the Appellant a r gued the fiJ st and third grounds of appeal together. It is clear that the d ecision of the Tribunal and thcJ of the Court below, were anchored on Section 55( 11) of the Act. This Section provides that- f. { l l, I I I I \ J35 i . ! I You are hereby requested to respond to this Notice wi'd !in 14 fourteen days of receipt thereof." (emphasis ours) The 'Notice' which is referred to in this document is on page 172 of the record of appeal. It was issued by the Executive Directo:· on 6 t h November 2012. The grounds of appeal outlined in the N, )tice of Appeal, appearing on pages 167 to 169 of the record, broad ::.y attack the constitutionality of the investigations, and of Section 5. S (4) and (5) of the Act. The reliefs sought include declarations tl 1at the Notice of Investigation and the Search Warrant. were, illf;f al and void ab initio. In essence; the a ppeal by the 1 s t Respondent was ag,:.i ·1.st the issuance of a Noti ce of Investigabon against it. The ques!.i >n that ought to have been resolved both at the Tribunal and in t}1< · Court below, therefore, \Vas whether one can appeal against f ~1 ; mere issuance of a Notice of Investigation under the Act. Inevitably, the follow up questions would be: - "at what stage of the App ~llant's investigation process can an aggrieved person or enterprise t:=tke the matter to the Tribunal? Can an aggrieved person or enterprl::e go to l.he 'Tribunal and invoke Section 55( 11) of the Act just on rect ipt of I t t \ J36 th e Notice and before the Appellant even conch~ci ~s its investigations? Did the Tribunal in this case have jurisd ·.c tion to d e al with the appeal by the 1 st Respondent against the l-I, )tice of Investigation?" These are the legal issues that vve put across to the · e arned Counsel for the 1 st Respondent at the hearing of the -:tppeal. Counsel conceded that s ince the issues in question are lega·· , this C ourt has the discretion to d eal with them even though tJ 1t -y were not r a ise d both before th e Tribuna l and the lower Cour~. They h ave, ho\vever , subrnitteci that this Court should not exen~j se that discr e tion, to d eal ,Nith th e legal issues raised, because rci . J.sal to dea l with them will no t occasion any injustice to the A_: )_ )ellant, more so that the Appella nt n ever appeared at the hearing of the a ppe al. Counsel has further submitted tha t this Court c:c.n only ex ercise its discretion to consider the s a id lega l issues if th e_[ arose fron1 the main matter that is still pending before the Trib1..u tal and not from a d e cision of the Tribunal on an interlocutory issue. J36 ') . th e Notice and before the Appellant even conch~ci -~s its investigations? Did the Tribunal in this case have jurisd·-c tion to deal with the appeal by the 1 st Respondent against the n, )tice of Investigation?" These are the legal issues that we put across to the ·. earned Counsel for the 1 st Respondent at the hearing of the :1.ppeal. Counsel conceded tha t since the issues in question are lega ·:, this Court has the discr etion to deal with them even though the ·y were not raised both before the Tribunal and the lower Cour:.:. They h ave, ho'\veve r, submitteci that this Court should not exer,:j se that disc r e tion, to d eal \Vi th the legal issues raised, because r(j . J.sal to deal with them will not occasion any injustice to the A;1_ )ellant, more so that the Appellant n ever appeared at the hearing of the appeal. Counsel has further submitted that this Court cc n only exercise its discretion to consider the said legal issues if th e_1 arose from the main matter that is still pending before the Trihu1 ~al and not from a decision of the Tribunal on an interlocutory issuf:. J38 JCN HOLDINGS L!iv'!ITED, POST NEWSPAPERS LIMITJ~:J AND lV.iUTEMBO NCHITO V DEVELOPME:f-lT BANK OF ZAMB<J ,12 • In t hat case , we specifically said the following:- "It is clear from the Chikuta and New Plast Industries Case~: · hat if a Court has no jurisdiction to hear and detennine a matter, it cannot make any lawful orders or grant any remedies sought by a :")arty to that matter." We again dealt with the issue of jurisdiction in the :::ase of ARISTOGERASIMOS VANGELETOS AND A. NOTHER V 1'-IETRO !NVESTMENT LIMITED AND OTHERS 13 • In that c :l ,e, vve accepted that the Appellant did not challenge the Hig i Court Judge's juris diction when the matter came up before him. \"Je a lso considered the general rule that an issue that has not been raised in the Court belovv cannot be ra ised on a ppeal. :However, \Ve held that the question of j urisdiction can be raised on appeal notwithstanding the fact tha t it was not raised in t he Cou:·t b elow. We went on to refer· to HALISBURY'S LAWS OF El\TGLA1r1 ), 4TH EDITION, VOLUME 10 PARAGRAPH 717 where the . earne d auth ors state that: B9 "It is the duty of an Appellate Court to entertain a ple :1 as to jurisdiction at any stage, even if the point was not raisE•c: in the Court below." We went further to state as follo\vs at pages J54 - J55:- "This authority clearly places an obligation upon us to alkn r a plea of want of jnrisdiction to be raised, even where, as in this c 1.se, the issue was not raised in the Court below. The rationale for ··his lies in the consequence of the court exercising jurisdiction .,. ~hich it does not possess. Halsybury1s at paragraph 715 states, in this regard, that where a court takes it upon its..elf to ext=-:rcise a jurisdiction which it does not possess, its decision am o ants to nothing. Jurisdiction must be acquired before judg1nent i3 given. It can be discerne d from the fo:regoing position of the law, l hat the absence of jurisdiction nullifies whatever decision follows f:rc -m such proceedings This is the position because, the power of this Court (like that of any other court created by the Constib11-.ion) t o adjudicate upon matters in terms of Articles 118 and 1 J ~ o f the Constitution of Zambia Act is vested in it by the people of 2 a nbia to be cxe1·cised justly in o.~cord....i;ice with th.:: Constitution t .nd any The exercise of s1:1ch power, in the ab , , ·nee of other l aws. jurisdiction, amounts to an abrogation of the confidence r -~1 osed in the courts by the people and a contravention of the Cor. ~ .:itution and other laws There i s , therefore, need to cure such a d ;feet at any adjudicative level and on appeal, whether or not it wa~ , :n issue in the Court below.'' The question that inevitably falls to be decided in th j s case, therefore, is whether the Tribuna l had jurisdiction to entert::1.in the a ppeal by the 1 st Respondent against the Notice of Investigati,.>n. 11 Now, appeals under the Act are governed by Section (1( ; of the /\et. That section provides that- "A person who, or a.n enterprise which, is aggrieved w ith a r.._,.·,rder or direction of the Comrnission under this Part may, within th .;_r :-..y days \ \ \ J4 0 of receiving the order or direction, appeal to the Tr ibunal." (Emphasis ours) It is evident from Part VIII of the Act that it is only Section 60 that an aggrieved person or enterprise can use to invcke the appellate jurisdiction of the Tribuna l; more so when one co,7.siders the provisions of Section 68 of the Act, which outlines the f J 1ctions of the Tribunal. It is unmistakable from Section 68 that ar= s rt from \Nhat is provided for in paragraph (b) of that section, a m c=t ~er can o nly be taken to the Tribunal through an appeal. The said Section 68 states as follows: - "68. The functions of the Trib1...1nal are to - (a) hear any a_p_p_c_aJ_made to it under this Act; and (b) perform such other functions as are assigned to it unde:·· -:his Act or any other law." (Empha s is ours) The other fun c tions re ferred to in paragraph (b) of Se -: :ion 68 relate to applications that the Act a llows Appellants to mal :{ to the Tribunal under circumstances that h ave b een specifically :,t ~ted in the Act. A cursory scrutiny of the Notice of Appeal filed b) the 1 st Respondent before the Tribunal, in fact shO\VS that he 1 s t Respondent lodged its app eal pursuant to Section 60 of the A et. As J41 173 1 sta ted a bove, that Notice of Appeal reveals that the 1 st ReEf '. Jndent was appealing to the Tribunal because it was dissatisfied J\ ith the Notice of Investigation issued by the Appellant on 6 th Ne, ember, 2012. Now, does a Notice of Investigation issued under · he Act constitute an "order" or a "direction" as envisaged by Secb J 1 60 of t h e Act? This is the question that ought to have exer cised t t e mind of the Tribunal and that of the lower Court. It goes to the '·.'< ry r oot and j urisdiction of the Tribunal. We a r e of the firm view that the above Notice of Inve :,·, igation car1not be said to ha vc been an · order· or 'direction' give:; 1 by the Appellant. An "orde r" has been d efined 1n BL.i\CK;E LA\V DICTIONARyii as follows: "1. A command, direction, or instruction. 2 . A written dir "! :tion or command delivered by a government o ffi cial, esp. a court o r. udge. • The word generally embraces final decrees as vell as interlocutory directions or commands." Clearly, the Notice of Investigation was not an order t ecause that Notice simply informed the 1 st Respondent that the Ar pellant b.ad officia lly instituted investigations against it and r e que~ t -~d it to respond to the Notice. The Respondents chose not to respo1 l( l to \ \ j I \ I I l \ ~ I I J4 2 , 1732 the Notice and instead appealed. Similarly, we are of the view that the Notice of Investigation cannot be said to be a 'direction' within the context of Section 60. BLACI{'S LAW DICTIONARYi . -:lefines direction as "An order; an instruction on how to pro:> ~ed .... " Such a 'direction', once given has to b e complied with. Th1~1·e is no option t o disobey. The word "direction" is not defined in t ·1e Act, b ut it \. Vould a ppear t h a t the context in which it is used in Section 6 0 of the Ac t r efers to dir ection s that are specifically pro·vi :led for under Section s 58, 59, 61 and 6 2 of the Act. The said ~ ~ctions en.i.power the Appellant Lo give certain directions to a persrn t or an enterpr ise . Section 58 empower s the Appellant to give d r ~ctions r elating to r estrictive agree m ents ; Section 59 empov, ·c rs the Appellant to give direc tion s r elating to dis tor tion, preve .1 :ion or r e stric tion of competition; Sec tion 6 1 empowe rs the Appe r 3-nt to, a mong other s , r em edy, m itigate or prevent subs t a ntial les[ c: :1ing of competition; and Section 62 a llows the Appellant to gran1 -nterim rn easures. It is those kind of directions which, in our '"1, ·w, are appealable to the Tribuna l u nde r S ection 6 0 of the Act. J43 On the basis of the foregoing, we hold that the l'Tc tice of Investigation was neither an order nor a direction in the coi ttext of Section 60 of the Act. It was, therefore, premature for the 1 st Respondent to appeal to the Tribunal against the issuance of the Notice. In fact, as can be seen from the wording of the N, )tice of Investigation, apart from notifying the 1 s t Respondent a 1 )< ut the investigations , it vvas intended to give it an opportunity tc )rovide explanations to r e but the a llegations against it. If ·, he 1 st :Respondent h a d p rovided satis factory explanations, it 1s r Dssible that the a llegations could have been allayed and the inves j ?;ations c ould have bee n c losed . Any othe r interpretation of Se,;1 ion 60 would defeat the ve ry purpose for which the Commiss i< ,n was created; to be a w a tc hdog of fa ir tra ding practices. In f :1 -::t, any other interpretation would have the effect of thwa rting or d., ~railing the Commis sion's very manda te . We do not think that it was the intention of Parliamen1, when it e n a cted S ection 55(11) of the Act, to enable a person or an e n terpris e , t o u se an a ppe al to the Tribuna l to th·Nart or ha]~ J44 1nvestigations properly instituted under the Act. In this ·: lse, all that the Appellant did was to inform the Respondent of the institution of investigations and to request it to respond to the a llegations in the Notice. As we have sta ted above, if we r.·. C ld that investigations by the Appellant can be halted, pursuant tc :3ection 55 (11) of the Act at any s tage of the investigations, we V'< uld be frustrating the very purpose for which the Appellc- r t was established b y the Legislature, namely, to 'safeguard and p r-< mote competition; and protect consumers against unfair trade practices'. It is our considered opinion, therefore, that ;ection 55 ( 11) of the Act only becomes operative when an appeal }:, .s been properly taken to the Tribunal pursuant to Section 6 0 of t 1e Act. Accordingly, we hold that the Tribuna l did not have jurisd i< tion to entertain the 1 s t Respondent's a ppeal against the No :ice of Investigation beca use the said Notice was neither a n ord -~~ nor a direction. Applying our d ecision in the cases of JCN HCI DINGS LIMITED 12 and ARISTOGERASilV10S ,1ANGELATOS 13 we Le Id that the purported appeal to the Tribunal against the Notice of J45 Investigation was a nullity from inception. It follows, theref) ·e, that the Appellant acted within the provisions of the Act, v ·hen it proceeded to render its decision on 26 th April, 2013. With regard to the second ground of appeal, Counse; for the Appellant has argued that the lower Court misdirected itse1·· vhen it held that the Appellant did not give the Respondents an opr ·c rtunity to be heard before it n1ade its decision of 26 th April, 2013. It is clear from the Notice of Investigation that the Ar pellant requested the 1 s t Respondent to r espond to that N otic,.~ within fourteen days of the Noti ce . The fact that the 1 st Responden t elected not to respond to the Notjce cannot be construed to mea:-1 that it v.ras not accorded an opportunity to make representation:) on the allegations. We, therefore, find m erit in the second grJ .1nd of appeal. The Court below, ther efore, err ed when it held U 1.at the Respondents had not been given an opportunity to be heard. On the fifth ground of appeal, Counsel for the Appe] t< nt has submitted that the learned trial Judge erred when she j o tl ed the 2 n d Respondent to the proceedings. Counsel has contended J .at i : I , \ l J46 since the 2 nd Respondent indicated its desire to be joineci to the proceedings, the lower Court ought to have formally made St 1 order for non-joinder. That, in the absence of the said order, he 2 nd Respondent was irregularly joined to the proceedings. We have indeed noticed from the r ecord of appeal, that the 2 nd Re spondent was not a p a rty to the proceedings before the T r :.bunal. In the proceedings b efore t h e lower Court, the only time tha •~ ·:he 2 nd Res pondent was m ention ed \,Vas on 29 th January, 20 l ·+ when Counsel for the Appella n t indicated that she had rec{ i 'ed an a pplication froin the 2"ci Respondent to join the proc e :::clings. Counsel for the Appel1ant further indicated that she did nff vish to oppose that a pplication . However, there is no evidence of t" 1e said application on the r ecord of a ppeal. It is thus not clear wht·t 1er the learned trial Judge d ecide d on the m a tter and allowed ·he 2 nd Re spondent to join the proceedings. In a ddition, in her jl.'. c gment, the learned trial Judge did not say anything as to whethe: · the 2nd Re spondent was joined to the proceedings, although i ':-ie 2nd Respondent's n an1e appears on the ca ption of the judgment c f the I I I I l I \ J47 lower Court. When asked by this Court, Counsel for · he 1 st Respondent admitted that the 2nd Respondent was not joi~1, ·d as a party. On this premise, we are of the view that the 2 nd Re~r 'Jndent was not properly joined to these proceedings. We find me1 i' in the fifth ground of appeal. On the totality of the issues in this appeal, we find me~ ·i -. in the appeal and vve allovv it. The judgment of the Court belov is set a side. It follovvs that t he decision of the Tribunal also falls c . Y -ay. According to Section 6 0 of the Act, an appeal against 3. 1 order or direction of the Tribunal must be made within 30 da 1: .. The decision of the Appellant in this case was made on 26 th A:r•r] 2013 and by tha t date, this matter had already been taker. to the Tribunal. Taking into account the appellate process f:t -m the tribunal, it . .can safely be stated that these proceedings h 3.· re only been concluded today. We , therefore, direct that the 30 d c\Y period given in S ection 60 within which to appeal should start r .1nn1ng from today . J48 The 1 st Respondent is therefore at liberty to appeal ag:.-.d ·:1.st the Appellant's decision of 26th April 2013 within 30 days from 1 c ::lay. Costs shall be for the Appellant to be taxed in d(~f J. Ult of agreement. I. C. Ma rnbilima CHIEF JUSTJCE .\ ! I i j -- - ,:_:_::.____,,...-- C .. -- ------·· .rtc} --------·G:==---·---·· R. M. C . Kc1oma SUPREIVIE co·uRT JUDGE -- i,) __ ,.-~--- C~1 an ga SUPREME co·uRT JUDGE