John K. Mileji v Kasanda and Ors (Appeal 187 of 2000) [2001] ZMSC 122 (26 April 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 187/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: JOHN K. MILEJI Appellant and DR. SICHALWE M. KASANDA 1a Respondent (As Permanent Secretary, Ministry of Education) and MAYBIN MUBANGA (As Permanent Secretary for North Western Province) 2nd Respondent and THE ATTORNEY-GENERAL 3rd Respondent CORAM: SAKALA, A. DCJ., CHIRWA, LEWANIKA JJS On 26th April, 2001 and........................ 2001 For the Appellant: For the lsl Respondent: No Appearance For the 2 Respondent: No Appearance For the 3rd Respondent: No Appearance F. S. KONGWA of Kongwa and Company JUDGMENT LEWANIKA, JS delivered the judgment of the court. We heard this appeal in the absence of the Respondent and their advocates under the provisions of Rule 71(b) of the Supreme Court Rules upon being satisfied that the advocates were aware of the hearing date. - J2 - This is an appeal against the decision of a Judge of the High Court refusing to grant the Appellant declaratory orders under Order 15/16/5 of the Rules of the Supreme Court. The evidence on record is that the Appellant was an established Civil Servant who was serving as Provincial Education Officer for the North Western Province. By a letter dated 15th December, 1999 the Teaching Service Commission transferred the Appellant from North Western to the Northern Province in the same capacity. By letter dated 30th December, 1999 the Appellant appealed against the transfer and by letter dated 6th April, 2000 the Teaching Service Commission cancelled the Appellant's transfer. On the same day the 1st Respondent wrote the following letter, quoting only the relevant parts: "I am pleased to inform you that the Teaching Service Commission acting for and on behalf of the President, has directed that:- (a) (b) your transfer from Solwezi to Kasama be cancelled and that you be considered as having resumed your duties at the Solwezi office, and that the Permanent Secretary, Ministry of Education should propose in this case to transfer you with immediate effect to the office of the Provincial Permanent Secretary on condition that the local authorities are prepared to accommodate you failure to which you must implement the directive that you immediately proceed -J3 - to your new station in Kasama from where you may appeal against the transfer if you wish." A subsequent letter dated 11th May, 2000 was written by the 1st Respondent to the Appellant instructing the Appellant to move to Kasama not later than 31st May, 2000. This prompted the Appellant to institute proceedings where he is claiming the following reliefs: - 1. As regards all the Defendants for a declaratory order that the Plaintiff is the lawful and authorised incumbent of the post of Provincial Education Officer for North Western Province and an order that the 1st and 2nd Defendants do abide by the directive of the Teaching Service Commission concerning the Plaintiffs transfer to Northern Province and that the Plaintiff assumes the duties of this office at Solwezi. 2. As against the lsl and 2nd Defendants, damages for ejecting the Plaintiff from and preventing his ingress into his office. The Appellant then applied for a "restraining order" or an "interim declaratory order" for an order that the status quo be maintained and that the 1st and 2nd Respondents do abide by the directive of the Teaching Service Commission cancelling the Appellant's transfer and that the 1st and 2nd Respondents be restrained from preventing the Appellant ingress to his office to perform his duties as Provincial Education Officer, North Western - J4 - province. This was the application which was refused by the learned trial judge and is the subject of this appeal. This application was said to be made Under Order 15/16/5 of the Rules of the Supreme Court. Order 15 Rule 16 of the Rules of the Supreme Court deals with declaratory judgments or orders. The order provides as follows Order 15 R. 16 "No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not any consequential relief is or could be claimed," Order 15/16/5 enables the court to make declarations or to grant a Declaratory judgment or order against state officials in an action brought against the Attorney-General. The order does not contain any provision that would enable the court to make any interim or interlocutory declaratory orders. The remedy sought by the Appellant in the main action is a declaratory order that the Appellant is the lawful and authorised incumbent of the post of Provincial Education Officer for Northern Province and an order that the 1st and 2nd Respondent do abide by the directive of the - J5- Teaching Service Commission cancelling his transfer to Northern province and that he assumes the duties of his office at Solwezi. This is the same relief that he seeks in his interlocutory or interim application. The learned trial judge was on firm ground when he refused to grant the order sought as to do otherwise would have had the effect of pre-empting the outcome of the main action. We find no merit in the appeal which we dismiss with costs, the costs are to be taxed in default of agreement. E. L. Sakala ACTING DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE D M. Lewanika SUPREME COURT JUDGE