Mohamed Abdi Mohamed (Male) v The Commissioner for Refugees and The Attorney General (Appeal No. 278/2022) [2024] ZMCA 59 (5 April 2024)

IN THE COU RT OF APPEAL OF ZAMBI A HOLDEN AT LUSAKA ( Civil Jurisdiction) Appeal o. 278 of 2022 BETWEE : MOHAMED ABDI MOHAMED (~ALE) i· 5 APR 20Z Appellant AND THE COMMISSIONER FOR REFUGEES THE ATTORNEY GENERAL 1 st Respondent 2nd Respondent CORAM: Chash i, Sichinga and S harpe-Phiri, JJA on 27th March 2024 and 5th April 2024 For the Appellants: Mr. R. yirenda or Messrs Fred Jere & Company For the Respo ndents: 1 o appearance JUDGMENT SHARP E-PHIRI, JA, delivered the j udgment of the Court Legislation referred to: I. The Rules of the Supreme Court of England I 965. (White Book). I 999 Edition Cases referred to: I. Balough v The Crown Court (197./) 3 All E. R. 283 2. Sebastian Sai::.i Zulu v The People S. C. Z. No. 7 of I 99 I 3. Post Nell'spapers limited v Rupiah 8 ll'e::.ani Banda (2009) ZR 25-1. Other authorities I. 1-Jalsb wy Laws of England. -Ith Edition, Vol11111e I 1.0 INTRODUCTION 1.1 This is a decision of an appeal against two ex-pa rte orders made by . I ustice Limbani of the Kabwe High Cou11 on 9th April 2021. J I 1.2 In the first order, the trial Judge discharged an order he earlier granted to the appellant on 8th February, 2021 for leave to commence judicial proceedings against the 1 st respondent. 1.3 In the second order, the trial Judge set as ide an order for leave to commence contempt proceedings, which order had been granted to the appellant on 25 th March, 2021 . 2.0 BACKGROUND 2.1 The case originates from correspondence of I 8th January 202 1, sent by the I s1 respondent to the appellant concerning his refugee status. The letter notified the appellant that the Refugee Status Determination Committee had reviewed his status as a refugee and recommended its revocation. It also informed the appellant that he wou ld be subjected to procedures outlined in the Immigration and Deportation Act No. 18 of 20 17. 2.2 This prompted the appe llant to file an app lication on 8th February 2021, fo r leave to commence Judicial Review proceedings in the High Court challenging the respondenf s decision to revoke his refugee status in Zambia. Leave was granted on the same day. 2.3 Despite being granted leave to commence judicial review proceedings. the appellant was charged and arrested with the offence of Illegal Stay in Zambia. On 12th March, 2021 , the appellant initiated contempt proceedings against the respondents, and the trial Judge granted an order fo r leave to commence contempt proceedings on 2S111 March 202 1. J2 2.4 In response to app lications brought before it by the respondents, through ex parte proceedings, the lower court subsequently issued two separate orders on the 9111 day of April 2021. An order setting aside the earlier order of 25111 March, 2021 granting leave to commence contempt proceedings; and a second order discharging the order of 8111 February 2021 granting leave to commence Judicial Review proceedings. These two of9th April, 202 1 orders are the subject of the appeal before us. 3.0 DECISION OF THE LOWER COURT 3.1 By an ex-parte order, the lower Court discharged the leave granted on 8th February 2021 to commence Judicial Review proceedings, stating 'ORDERED and ADJUDGED that leave granted on 8th February 2021 to commence Judicial Review proceedings is hereby DISCHARGED '. 3.2 Additional ly, by a fu1ther ex-p arte o rder of the same date, the lower C ourt set aside the leave granted on 25111 March 2021 to commence contempt proceedings stating, 'ORDERED and A DJUDGED that leave granted on 25t1, March 2021 to commence Contempt proceedings is hereby SET ASIDE'. 4.0 APPEAL BEFORE US 4.1 Displeased with the lower Court's orders of 9111 April 2021, the appel lants sought and obtained leave from the Court of Appeal to appeal against these orders. The appellant presented three gro unds of appeal to th is Court, through a notice of appeal and a memorandum of appeal fi led on 11 th April 2022. J3 4.2 The grounds of appeal are as follows : (i) The Court below erred in law and fact when it discharged the order granting leave to commence judicial revie)tl through an ex-parte application which had no return date for inter-parte hearing,· (ii) That the trial Court erred in Law and/act vvhen it dismissed the order for leave to commence contempt proceedings through an ex-parte application 111hich had no return date/or inter-parte hearing; and (iii) That the trial Court erred in la111 and/act when it dismissed the order for leave to commence contempt proceedings 111hen it had no jurisdiction to dismiss the same. 5.0 ARGUMENTS OF THE PARTIES 5.1 The appellants filed their heads of argument on 24th November 2022. We have not had sight of arguments filed on behalf of the respondents. The appellant's arguments will not be reproduced here but referred to where necessary in our decision below. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard before us on 27111 March 2024. The appellant's counsel was before Court. The respondent's counsel was absent. Counsel for the appellant relied on their arguments as submitted and urged the Court to allovv the appeal. J4 7.0 OUR DECISION ON THE APPEAL 7.1 We have carefully considered the record of appeal and appellant's arguments before us. We note that the two orders setting aside leave to commence contempt proceedings and discharging the leave to commence Judicial Review proceedings, both dated 9th April 2021 , have been stayed pending determination of this appeal. This stay was granted through a ruling of a single Judge of this Court on I 0th March, 2022. 7 .2 In addressing our minds to the arguments of the appellant, we observed that the first and second grounds of appeal have been argued together. We propose to deal with each ground individually. The first ground of appeal argues that the lower Court made a legal and factual error by discharging the order granting leave to commence Judicial Review through an ex-parte application that did not have return date fo r inter-partes hearing. 7.3 The appellant argues that the lower Court should not have considered ex parte applications made by the respondents, as these effectively resulted in a final decision against the reliefs granted to the appellants by the same Court, without giving the appellant an opportunity to be heard through an inter-partes hearing. 7.4 The appellant cited paragraphs 105 and 107 of Volume l(i) of the 4th Edition of the Halsbury's Laws of England, which states that no one should be condemned unless they have been given prior notice of allegations against them and afforded an opportunity to be heard. The appellant emphasized that it is a fundamental principle of law that any body resolving J5 a dispute between pai1ies must give each pa11y a fa ir oppo11unity to present its case. 7.5 The appellant further argued that the orders of 9 April 2021 effectively amounted to a final decision by dism issing both Jud icial Review proceedings and contempt proceedings, despite the appellant having previously satisfied the lower Courf s requirements for granting leave for both types of proceedings. That appellant contended that the lower Court should not have dismissed or set aside the leave it had granted earlier without giving the appellant an opportunity to be heard. 7.6 Ground I asserts that it was an error on the part of the lower Court to discharge the leave it earlier granted to the appellant to apply for Judicial Review proceedings through an ex-parte application which had no return date fo r inter-partes hearing. It is evident from the order itself that the lower Court granted the application to discharge the Judicial Review proceedings ex-parte, without affording the appellant an opportunity to be heard. Fundamental principles of justice do dictate that parties must have a chance to be heard. The trial Judge fai led to extend his basic principle of justice to the appellant. 7. 7 In fu11her considering this ground of appeal, we have referred to the procedural provisions outlined in Orde r 53 o f th e Rules of th e Supreme Court 1965, as set out in the White Book, 1999 Edition . 7.8 Particularly, we have looked at S ubrules 1 and 2(a) o f Rule 3 which state: "(1) No application for judicial review shall be made unless the J6 leave of the Court has been obtained in accordance with this rule. (2) An application/or leave must be made ex parte to a Judge by filing in the Crown Office- (a) a notice in Form No.86A containing a statement of (i) the name and description of the applicant, (ii) the relief sought and the grounds upon which it is sought, (iii) the name and address of the applicant 's solicitors (if any) and (iv) the applicant 's address for service,· and ... " 7.9 Our understanding of sub-rules l and 2(b) is that Jud icial Review proceedings can only be initiated once a party obtains leave of the Cowt to commence such proceedings. The purpose of requi ring leave to app ly fo r Judicial Review, as stated in Orde r 53 rule 14 (55) of the White Book, is to ensure that only cases with merit proceed to a fu l I hearing. This requiremen t helps to filter out unmeritorious claims and enables th e efficient management of the court's workload. 7.10 The provisions of Order 53 rule 14 (55) o f the White Book state that the purpose of the requirement fo r leave is: a) To eliminate at an early stage any applications which are either frivolous, vexatious, or hop eless; and b) To ens ure that an applicant is only allowed to proceed to a s ubstantive hearing if the Court is satisfied that there is a case fit for furth er co11sideratio11. J7 7 .11 The foregoing provisions or the White Book are instructive that the purpose for which leave is intended is to eliminate at an early-stage applications which are either frivolous, vexatious or hopeless. Therefore, the issue for considerati on at the leave stage is whether the rel iefs sought by the applicant are indeed fit for fu rther investigation. 7.12 Our understanding is that once leave to commence Judicial Review proceedings has been granted, it may only be discharged under certain conditions. These conditions could include terms set by the Court at the time leave vvas granted, or if the Court subsequently finds that the appl icat ion is an abuse or the Court process. The provisions of Order 53 of the Rules of the Supreme Court discourages applications to set aside an order for leave to commence Judicial Rev iew unless the respondent can clearly demonstrate that the substantive application will clearly fail. This is outlined in Order 53/1-14/2 under paragraph 3 of the White Book. 7.13 Other circumstances that mi ght warrant the discharge of leave lo commence Judicial Review proceedings could include the applicant's fa ilure to pursue the substantive application within a reasonable time after obtaining leave from the Court, or where there has been a change in circumstances, such as a resolution between the parties or other instances wh ich render the application for Judicial Review unnecessary. 7.14 In the present case, leave to commence Judicial Review proceedings was granted to the appellants on the 8th February 2021 , (see page 135 of the record of appeal). An ex-parte order of I 9th March, 2021 granted an extension or time to file the substantive Judicial Review proceedings (see page 86 of the record of appea l). J8 7.15 However, fo llowing this extension, the lower Cou1t proceeded to discharge the leave. We have not seen the specific ex-parte application that resulted in the order discharging the appellant's leave to commence judicial review proceedings to understand the circumstances under which this was done. 7.16 Our understanding of the procedure outlined in Order 53 Rule 3, it is difficult to comprehend the basis upon wh ich the lower Court moved ex parte to discharge the order granting leave to commence Judicial Review proceedings. This is especially perplexing considering that, at the time of granting the application fo r leave to commence Judicial Review, the trial Court should have ensured that there was a case fit for further consideration. Additionally, the Court had even extended the order by a further order of the same Court on 191h March 2021 and the appellant was not given an opportunity to be heard on the respondent's app lication. 7.17 Based on the above reasons, we concur with the appellant on this ground, asserting that the learned trial Judge in the lower Cou1t erred in discharging the order granting leave to commence Judicial Review proceedings. We therefore find that the first ground of appeal has merit, and it succeeds accordingly. 7 .18 The second ground of the appeal contends that the trial Judge en-ed when it set as ide the order of 25 th March 2021 for leave to commence contempt proceedings. This ground will be determined together with the third ground of appeal wh ich contends that the trial Judge erred in law and fact when he dismissed the order for leave to commence contempt proceedings when it had no jurisdiction to dismiss the same. J9 7.19 In considering these grounds, we refer to the principles on committal proceedings established in the case of Balo ugh v The Crown Court1 where Lord Denning M. R. held that: "As I have said a judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases h e should not take it on himself to move. He should leave it to the A ttorney General or to the party aggrieved to make a motion in accordance with the Rules in RSC. Order 52. Th e reason is so that h e should not appear to be both prosecutor and judge; for that is a role which does not become him well." 7.20 The Balo ugh case was cited with affirmation by the Supreme Cou11 in the case of Sebastian Saizi Zulu v The People2 where the Supreme Cou1t also dealt with the procedure and manner of proceeding with contempt proceedings. The Supreme Court held that: "We agree that, in accordance with Balough (5) and other authorities referred to therein, it is gen erally improper for a Judge to deal summarily with a contempt, as it is undesirable for him to appear to be both prosecutor and Judge. Despite these authorities, however, where a contempt is committed in the face of the co urt there is nothing illegal (or even unfair) in the holding (under Order 52) of an enquiry by a Judge before whom the contempt is committed. It is envisaged that such cases would be ve,y rare as the great majority of contempt's committed in the face of th e court J 10 wo uld be such that there really would be nothing to enquire into." (emphasis ours) 7.21 Established precedence disapproves any procedure tainted with the summary disposition of contempt proceedings. This view is clearly endorsed by the authorities mentioned above. The Supreme Court has further elucidated on the procedure for contempt proceedings in a later decision. in the case of Post News pape rs Limited V Rupi ah Bwezani Banda.3 7.22 In the Post News papers v Rupiah Banda case, the Court held that: "An ex parte order obtained under order 52 is a 'final order" or an order in the nature of an order requiring the other party lo appear at the hearing of the notice of motion and show cause why he cannot be committed to prison for contempt of court. It can only be upset on appeal." 7.23 The authority above elucidated that an ex-parte order obtained under Order 52 of the RSC is a final order. From the foregoing, it is therefore clear that the Court below erred in adopting the manner it did, in dismissing the contempt proceedings summarily without hearing the parties. Once leave to commence committal proceedings is granted, it may on ly fail upon effluxion of time. determination at substantive hearing or upon setting aside on appeal. For the said reasons, the second ground of appeal also succeeds. 7.24 In presenting the third ground of appeal, the appellant's argument centered on the precedent set in the case of Post News pa pers Limited. After considering the implication of this case, it was determined that the lower JI I Court lacked jurisdiction to entertain an application to set aside the ex-par/e order once leave to commence contempt proceedings had been granted on 25 th March, 2021. Therefore, this third ground of appeal also has merit. 8.0 CONCL USION 8.1 In conclusion, as we have determined that the appeal is successful in its entirety, we hereby order and direct that the orders of the trial Judge of 9th April 2021 be and are hereby set aside. 8.2 Consequently. both earlier orders granting to the appellant fo r leave to initiate Judicial Review proceedings and to commence contempt proceedings remain in effect. 8.3 We therefore refer the matter back to the High Court in Kabwe before a different Judge to issue fresh directions regarding filing of process for the Judicial Review and the contempt proc e ings. J. C shi CO URT O A PP EA L J UDGE cou ~> r-~ :A. S ha rpe-Phiri COURT OF A PPEAL J UDG E J 12