Grandy Ntumo v The Attorney General and Anor (CAZ/08/551/023) [2023] ZMCA 404 (13 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08/551/023 IN THE MATTER OF: IN THE MATTER OF: BETWEEN: GRANDY NTUMO AND THE ATTORNEY GENERAL THE ANTI-CORRUPTION COMMISSION 1 ST RESPONDENT 2ND RESPONDENT Before Hon. Madam Justice C. K. Makungu in Chambers For the Applicant: Mr. M. Ndalameta, Miss C. L. Sinka/a both of May & Co For the 1•' Respondent: Miss E. Mutonga Assistant Senior State Advocate and Mrs. L. Chiesakunda both of the Attorney General's Chambers For The 2°d Respondent: Mr. N. Kanyimo and Mr. Lukama - In- House Counsel - Anti- Corruption Commission RULING Cases referred to: 1. R v. DainJ Produce Quota Tribunal/or England and Wales exp. Caswell(1989) 3 All E. R. 205 2. Wynter M. Kabimba v. The Attorney General ( 1996) SCZ Selected Judgment. 3. Mung'omba and others v. Machungwa (2003) ZR 17 I -► 4. Denick Chitala (Secretary of the Zambia Democratic Congress) u. Attorney General SCZ No. 14 of 1995. 5. Fredrick Jacob Titus Chiluba v. Attorney General (2003) ZR 153 6. Bibiyanna Bu lay a Keams u. Attorney General 2011/ HP/ 91 (unreported) 7. Council of Civil Service Unions v. Minister for Civil Service ( 1985) AC 374 Legislation referred to: 1. The Rules of the Supreme Court of England, 1965 (white book) 1999 Edition 2. The Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010 (The Whistleblowers Act) 3. Public Finance Management Act No. 15 of 2018, Civil Service Terms and Conditions of Service 1.0 INTRODUCTION 1.1 This is a renewed application for leave to apply for judicial review made pursuant to Order 53 Rule 3(4) (b) of the Rules of the Supreme Court of England 1965 (RSC). It was made ex-parte on the 10Lh of November, 2023 but I decided to hear it inter-partes. Hearing took place on the 5 th and 11th December, 2023. The matter is based mainly on section 10 and 49 (11 of the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of 2010herein after referred to as the Whistleblowers Act. -R2- ·- 2.0 FACTS 2 .1 The facts contained in the Notice of Renewal of Application for leave to apply for Judicial Review are that in or about March, 2020 the applicant was assigned by Mrs. Norah Sichilongo the Director-Specialised Audit (D-SA) to lead a team of internal auditors to carrv out a forensic audit on the Ministrv of General - - Education (MOGE) for the period between January and December, 2019. 2.2 During the said audit, the team of internal auditors including the applicant discovered that approximately ZMWS00,000.00 was spent irregularly and the accounting officers openly admitted having spent funds outside the Public Finance Management Act No. 15 of 2018, Civil Service Terms and Conditions of Service and other prescribed laws and regulations. 2.3 As a result of the discovery made by the internal auditors, the applicant was approached by named officers of the MOGE intending to bribe him in order to falsify the internal audit report on the MOGE. 2.4 The applicant refused to accept this bribe but one Dr. Patrick Chanda, a Provincial Accountant at the Ministry of Education, -R3- .. Provincial Education Office in Kabwe proceeded to deposit the sum of ZMWS,000.00 in the applicant's personal account in order to persuade him to falsify the said internal audit report. The said sum has since been seized by the 2 nd respondent from the applicant's bank account. 2.5 On or about 20th June, 2020, the applicant reported these incidents to the AD-MOF, D-SA and Mr. Chibwe Mulonda Controller of Internal Audit (CIA). Despite making the disclosures aforesaid, the applicant did not receive the support of the Senior Management team in the Internal Audit Department of the MOF. 2.6 Sometime on or around 20th November, 2020 the applicant while on assignment in Kabwe was stalked by unknown people and a laptop containing evidence of the internal audit, an ipad mini and flash disks were stolen from the applicant's motor vehicle. 2. 7 The applicant reported the incident to the Zamia Police Service at Kabwe Central Police as confirmed by a letter dated 18th June, 2021 from the Criminal Investigations Officer at Kabwe Central Police. It is the applicant's suspicion that certain MOGE personnel are responsible for stealing the said items in order to -R4- destroy evidence in respect of the Forensic Audit contained in them. 2.8 Arising out of the forensic internal audit report issued by the internal audit, sometime in June or July, 2020, the applicant made a public interest disclosure to the 2 nd respondent of alleged corrupt practices, abuse of authority of office and money laundering against Senior Officers at the MOGE and MOF. 2. 9 Arising from the public interest disclosure made by the applicant regarding the foregoing, the applicant, has been subjected to victimization in his workplace. 2.10 The applicant has received no assignments for work, has been supervised by a junior officer, and has received unwarranted charges for loss of government property in form of a laptop. 2.11 On or about 21 st July, 2021 a few days after receiving the charge of loss of government property by AD-MOF from Ms. Jamie Nkhuwa - Acting Director Audit Operations. 2.12 On or around 26th July, 2021, a few days after receiving the charge of loss of government property in form of a laptop, the applicant received a staff transfer letter from the Director Human Resource (D-HRA) transferring him from Lusaka to Mongu, Western Province. -RS- 2.13 On or about 3rd August, 2021 the applicant appealed this decision to transfer him by the Civil Service Commission (CSC) and the Secretary to the Cabinet advised that he would not move to Mongu but would continue to report for work at the Ministry of Finance in Lusaka. 2.14 To date, the applicant has not received a formal response to his appeal against his transfer nor has a formal decision on the charge of loss of government property been communicated to him. 2.15 Sometime on or around 23rd September, 2021, the D-HRA handed the applicant a 48 hour ultimatum to explain the reasons why he had not reported for work in Mongu. 2.16 On 25 th September, 2021, the applicant responded to this ultimatum citing the fact that the ACC was carrying out investigations into the large-scale corruption, money laundering and fraud at MOGE. The applicant also stated that the ACC had cautioned the MOF against transferring him until such time that investigations were concluded. 2.17 On or around 27th September, 2021, the applicant wrote to the 2 nd respondent requesting its intervention that he be protected -R6- as a whistleblower and that he should not be transferred to Mongu. 2.18 Instead, in or about December, 2021 Mr. Felix Nkulukusa, the then Secretary to the Treasury summoned the applicant into his office and accused him of being an imposter purporting to be a whistle blower for the 2nd respondent. He threatened to retire him in national interest within ten days if he did not report to Mongu where he had been transferred. 2.19 In or about October, 2021 the 2nd respondent recorded warn and caution statements against the D-HRA and CIA and prohibited them from interfering with the audit findings at the MOGE by victimizing the whistleblower in this case, the applicant. 2.20 That during the recording of the warn and caution statements, the Permanent Secretary Economic Management Finance informed the Director General of the 2nd respondent that the apparent protection by the 2nd respondent of the applicant was posing a challenge to the MOF's execution of the administrative actions. 2.21 The reason given was that MOF had never been formally informed that the applicant's case was to be treated in a special -R7- way that he could be made to account for loss of government property under his custody without being transferred. 2.22 On the basis of the foregoing meeting with the 2nd respondent, the D-HRA and the CIA reached out to the Civil Service Commission (The CSC) for guidance stating that it was proving difficult to proceed with disciplinary action against the applicant. 2.23 On or around 20th December, 2021, the Director General of the 2 nd respondent advised the Secretary to the Treasury, Mr. Felix Nkulukusa at MOF to insure that the applicant is protected against reprisal and any victimization by any MOF official until investigations in relation to the corruption allegations are concluded pursuant to Section 26 of the Whistleblowers Act. 2.24 During the period November, 2021 to May, 2022 he was involved in the Internal Audit verification of pharmaceutical drugs, and he was the team leader of the Southern Province team. 2.25 Amidst the interactions and investigations by the 2nd respondent, one Mr. James Lindu from the Ministry of Home Affairs was transferred to the MOF to replace the applicant. The -RS- applicant's office was soon thereafter, occupied by two additional officers. 2.26 The additional instances of victimization and harassment came as a result of D-SA and the CIA chasing the applicant from the MOF offices. The applicant's car was also deliberately damaged and hit into several times which incidences were reported to respective law enforcement agencies. 2.27 Further, on a separate day, the applicant reported for work and a lady accosted him demanding that he releases documentary evidence to her of the accounts that Mr. Fredson Y ama, Mr. Chibwe Mulonda and Kennedy Musonda had looted out of the MOF. The said lady purported to have been sent by the Head State. 2.28 The applicant refused to comply with her demands and reported the incidents to the CIA, Jemmy Mukuwa - Operations Director as well as D-SA in writing immediately after the incident. 2.29 In addition to the following reprisals meted out on the applicant, the pay point position was also moved to Western Provincial Administration without following the correct procedure. That is, the applicant did not complete the "Arrival Advice and Payment -R9- of Salary Form" as required by the terms and conditions of service for the Public Service. 2.30 The applicant was in or around February, 2022 moved by the Drug Enforcement Commission (DEC) to its Safe house for his safety and as a precaution in light of several threats and intimidation made to harm him by various parties. The DEC duly informed the MOF of the decision to place him in a Safe house. 2.31 On or around 9 th August, 2022, the CSC advised the MOF after engaging relevant stakeholders on the applicant's circumstances that the applicant was absent from work without authority, for no valid reason. Then the CSC recommended that disciplinary action be initiated in line with the Disciplinary Code and Procedures for handling offences in the Public Service, 2003. 2.32 Sometime in January, 2023, the applicant discovered that he had been removed from the payroll and was as a result not receiving any remuneration. 2.33 Further, around January, 2023, the AD-MOF charged the applicant with absenteeism from work since September, 2021. -RlO- The applicant exculpated himself through a letter to D-HRA on 23rd January, 2023. 2.34 On or around 27th January, 2023, the applicant wrote to the Director General of the 2nd respondent requesting that the office censures MOF officials for breaching the restriction placed by the 2nd respondent and breach of the Whistle blowers Act. 2.35 On even date of 27th January, 2023, the applicant through his then lawyers, LCK Chambers wrote to the Attorney General's Chambers demanding that he be reinstated onto the payroll and steps be taken to prevent the reprisal the applicant had been facing. 2.36 On the same date, the applicant through his then lawyers, LCK Chambers wrote to the 2nd respondent requesting a progress report on their investigations following' the applicant's public interest disclosure of corruption and abuse of authority in the MOGE and MOF in accordance with the provisions of the Whistleblowers Act. 2.37 On 20th April, 2023, the Attorney General's Chambers wrote back to LCK Chambers advising them that the applicant had not been removed from payroll but his salary had been withheld (frozen) because he had not been rendering any service in line -Rll- with Section 60 (b) of the Terms and Conditions of Service, 2003. 2.38 The applicant was being housed at a Safe house at the instance of the DEC since February, 2022. 2.39 The applicant on or around 12th September, 2023 received a letter dated 6 th September, 2023 from the Director General of the DEC giving the him notice to vacate the safe house by 30th September, 2023. 2.40 To date, he has not been provided with a progress report on their investigations following the applicant's public interest disclosure of corruption and abuse of authority in the MOGE and MOF in accordance with the provisions of the Whistleblowers Act. 3.0 GROUNDS FOR JUDICIAL REVIEW 3.1 The grounds raised for judicial review are illegality and irrationality. 4.0 APPLICATION FOR EXTENSION OF TIME 4.1 The applicant drew the Court's attention to Order 53 rule 4(1) RSC which empowers the court to extend the period within which such an application should be made where the court considers -R12- that there is good reason for extending the period. Reference was made to the case of R v. Dairy Produce Quota Tribunal for England and Wales exp. Caswel11 on the same principle. The applicant submitted that it is not mandatory to make a separate application for extension of time as an extension may be granted when dealing with the ex-parte application for leave to commence judicial review proceedings. 4.2 That in this case, the delay to apply for judicial review was occasioned by the fact that the applicant was housed in the DEC Safe house and had intermittent access to the outside world and to counsel. Further, the withholding of the applicant's wages crippled his ability to mobilise the necessary resources to engage legal counsel and he had to seek support from well-wishers. The applicant therefore prayed for an extension of time for making the application for judicial review. 5.0 APPLICATION FOR INTERIM RELIEF 5.1 The. applicant relied on Order 3 ( 10) (b) of the Rules of the Supreme Court to seek direction from the Court that the grant of leave to move for judicial review shall operate as a stay of the decision to institute disciplinary proceedings against him, the -Rl3- decision to withdraw his remuneration and the decision to remove him from the Safe house. Reliance was placed on three cases including Wynter M. Kabimba v. The Attorney General2 and Mung'omba and others v. Machungwa. 3 5.2 The applicant seeks an order of certiorari to remove into the High Court for the purpose of quashing the said decisions. 6.0 AFFIDAVIT IN SUPPORT OF THE RENEWED APPLICATION 6.1 In the affidavit in support of the renewed application for leave to apply for judicial review, the applicant gave a brief history of the case and explained that his application for leave to apply for judicial review which was made 29th September, 2023 before the lower court was refused on 30th September, 2023. He exhibited the ruling of the lower court marked as 'GN2.' 7.0 1 sT RESPONDENT'S RESPONSE 7 .1 Although the 1st respondent was represented at the hearing before me, he failed to file an affidavit in opposition. 8.0 2N° RESPONDENT'S AFFIDAVIT IN OPPOSITION 8.1 The 2 nd respondent filed an affidavit in opposition on 8 th December, 2023. The same was sworn by Ferguson Kombe a -R14- .. Senior Investigations Officer in the employ of the Anti Corruption Commission. The essence of his affidavit is that the deponent has been advised by counsel for the 2 nd respondent and verily believes the same to be true that the matters raised by the applicant are embedded in the realm of private law and not public law. 8.2 That the reliefs sought by the applicant are connected to his personal wellbeing, the disciplinary charges labelled against him, his remuneration being withheld and his removal from the Safe house which are purely matters of private law and not public law. 8.3 Further that the questions raised and the reliefs sought are outside the realm of judicial review. 9.0 THE 2ND RESPONDENT'S SKELETON ARGUMENTS 9.1 In the written arguments filed on 8 th December, 2023 the 2 nd respondent's counsel referred to Order 53 rule 3(4) (b) of the rules of the Supreme Court which provides as follows: "(4) Where the application for leave is refused by the Judge, or is granted on terms, the applicant may renew it by applying- -R15- .. (b) In any other case, to a single Judge sitting in open court or, if the Court directs .... Provided that no application for leave maybe renewed in any non-criminal cause or matter in which the Judge had refused leave under paragraph (3) after a hearing." 9.2 Counsel submitted that the requirement for obtaining leave to commence judicial review proceedings is to eliminalc frivolous, vexatious and hopeless applications. To buttress this, I ,,·as referred to Order 53 rule 14 (21) of the RSC which provide inter alia thal: "The purpose of the requirement of leave is: (a) To eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter-partes judicial hearing; and (b) To ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied there is a case fit for further investigations at afull inter-partes hearing." -R16- 9.3 Counsel stated that this position of the law was reiterated in the case of Derrick Chitala (Secretary of the Zamia Democratic Congress) v. Attorney General.4 9.4 Counsel posed the question whether the applicant has demonstrated that his application is not frivolous, vexatious or hopeless and that his case is fit for further consideration at a full hearing. 9.5 In answering the question, counsel referred to Order 53/4/ 1 of the RSC which the lower court had referred to in its ruling. It provides that: (l)''An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made." 9.6 Counsel submitted further that the lower court rightly pointed out that the decisions complained of were made between 2021 and September, 2023. That the grounds/decisions in respect of -R17- which reliefs ,vere being sought arose in 2021. Thus at the time the application for leave was filed in the court below on 29th September, 2023 two years had passed and thus the application was said not to have been promptly made in accordance with Order 53/4/1 of the White book. 9.7 Counsel submitted that this application should not be allowed as it does not comply with the said Order and rule. 9.8 He further pointed out that the lower court observed that only the relief relating to the decision of removing the applicant from the payroll was promptly made. 9.9 Counsel proceeded to argue against the application before me as though it were an appeal against the lower court's relief refusing to grant the application for leave to commence judicial review proceedings. Therefore, such submissions will be omitted. 9.10 It was submitted that the application should be refused because the applicant seeks to have the merits of the decisions complained of reviewed, and not the decision making process, and this is contrary to the case of Fredrick Jacob Titus Chiluba v. Attorney General.5 -RlS- • 9.11 Counsel further subn1itted that the reliefs sought by the applicant relate to his employn1ent, internal disciplinary procedures and his remuneration, which are not fit for judicial review. In support of this submission he referred to the case of Bibiyanna Bulaya Kearns v. Attorney General6 a High Court case where High Court Judge Hamaundu as he then was, stated as follows: " .. . Judicial review makes a distinction between public and private law. Judicial review will not lie where a person seeks to establish that a decision of a person or body infringes rights which are entitled to protection under private law and not public law. Order 53/14/33 of the Rules of the Supreme Court provides: " ... A claim in connection with the dismissal of an employee from an employment with a public authority where the conditions of employment are governed by a statutory instrument is nevertheless a matter of private law, not public law." -Rl9- • "Quite clearly, the applicant's grievance arises from a contract of employment. The decision complained of was made by the applicant's employer. Even though a statute might play a part in the party's disciplinary procedure, the dispute, nonetheless remains one that should be addressed by private law and not public law." 9.12 Referring to the case of Council of Civil Service Unions v. Minister for Civil Service,7 counsel finally submitted that Courts may intervene in the decisions of executive and public bodies through the process of judicial review only when a public body acted ultra vires, illegally, irrationally and where there was procedural impropriety. 9.13 That in casu, the applicant has not demonstrated ·what illegality the 2nd respondent has done to warrant judicial review of the alleged decision not to give him the progress report regarding the complaint he lodged. Further, the applicant has failed to demonstrate how irrational the alleged decision of the 2nd respondent was. Therefore, there is nothing reasonable or irrational about the alleged decision \Vhich requires further investigation during judicial review proceedings so as to -R20- • • warrant the grant of leave to commence judicial review proceedings. He prayed that the application be dismissed with costs to the respondents. 10,0 ANALYSIS AND DETERMINATION 10.1 I have considered the affidavits on record, the notice of renewal of ex-parte application for leave to apply for judicial review and the 2nd respondent's skeleton arguments in opposition to the application. 10.2 The applicant has raised an issue of extension of time within which the application before me should be made. It is clear that the decisions complained of were made between 2021 and September, 2023. Therefore by 29th September, 2023 when the applicant first made a similar application before the lower Court, two years had elapsed from 2021. The respondent states that the application was delayed and yet proceeded to argue the application. 10.3 In his affidavit in support of the application and the notice of renewal of the application for leave to apply for judicial review, the applicant has linked all decisions complained of to his involvement in the forensic audit that took place in March, -R21- • ·• 2020. He alleges that the said decision makers have acted maliciously or spitefully against him ever since the forensic audit revealed that approximately ZMWS00,000.00 was spent irregularly and contrary to the Public Finance Management Act No. 15 of 2018. 10.4 The applicant seeks protection under Section 10 of the Public Interest Disclosure (Protection of Whistleblowers) Act No. 4 of2010 which provides that: "An employer shall not subject an employee to any occupational detriment on account, or partly on account, of the employee having made a protected disclosure or public interest disclosure." 10.5 The applicant also relies on Section 49 (1) of the Whistle blowers Act ·which grants him as an employee, the right to apply to any court of competent jurisdiction for appropriate relief if he is subjected, is subject or may be subjected, to any occupational detriment in breach of section 2. 10.6 Before I decide ·whether or not to extend the time, I will deal with the question raised by the 2nd respondent; whether the renewal -R22- • of the application is competent in this case in view of the proviso to Order 53 rule 3 (4) (b) of the RSC which says: "Provided that no application for leave may be renewed in any non-criminal cause or matter in which the Judge has refused leave under paragraph 3 after a hearing." 10.7 It is my considered view that the hearing envisaged under this proviso is an inter-partes hearing as can be discerned from Order 53 rule 14 (21) which partly reads: ''Applications for leave are normally dealt with ex-parte by a sing le Judge, in the first instance without a hearing." 10.8 It is clear from the Ruling of the lower court (exhibit 'GN2') in the applicant's affidavit in support of his application that his application was determined by the lower court ex-parte without "a hearing." Therefore l hold that the application before me is competent. In short, the said proviso has not been breached. 10.9 l now turn to determine the question whether the time for making the application before me should be extended. Looking at the basis of the application: Sections 10 and 49(1) of the -R23- • ... Whistleblowers Act, I am of the view that this matter is of public interest and should be allowed to be determined on its own merits as the fight corruption is on top of the agenda of the government of the day. Further that the events complained of seem to have come one after the other despite the mentioned administrative interventions. 10.10 For the foregoing reasons and without delving into the merits of the case, I hereby extend the time for making this application. 10.11 On the question whether leave to commence judicial review proceedings should be granted, my answer is as follows: Looking at the purpose of the requirement for leave as stated under Order 53 rule 14 (21) of the RSC and various cases including Derrick Chitala (Secretary of the Zamia Democratic Congress) v. Attorney General,4 I hold that this application is not frivolous, vexatious or hopeless. Following the case of R v. Secretary of the State Home Department Exp. Rukshanda Begum, 8 I am satisfied that the applicant has established a prima facie case fit further investigations at a full inter-partes hearing of the substantive application for judicial review. -R24- • w 10.12 Counsel for the 2nd respondent argued that the applicant has demonstrated that he desires that the court reviews the merits of the decisions complained of and not the decision making process. I beg to differ. Unlike the Kearns8 case, this case involves some provisions of the Whistleblowers Act and the alleged breach thereof which has purportedly affected the applicant's welfare because of the way he has been treated by his superiors and other named authorities. It is not only about his employment contract, so the dispute concerns both private and public law but more so public law. 10.13 Consequently, I grant leave to commence judicial review. 11.0 ORDERS 11.1 Having granted leave, it is in the interest of justice to order as I do that the following be stayed pending judicial review by a different Judge, which ought to be expedited: transfer of the applicant to Mongu and disciplinary proceedings against him. I further order that his remuneration be paid by his employer in arrears forthwith and that the 2nd respondent should find a safe house to place the applicant in forthwith. -R25- " 12.0 CONCLUSION 12.1 All being said, the application is granted with costs to the applicant, the same to be taxed in default of agreement between the parties. Dated this 13th day of December, 2023 C. KMAKUNGU COURT OF APPEAL JUDGE