Ng'andu Consulting Limited v The Attorney General (2023/HP/1232) [2024] ZMHC 175 (26 March 2024)

IN THE lllGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2023/HP/1232 IN THE MATTER OF: TO IN THE MATTER OF: ORDER 53, RULE 3 OF THE RULES OF THE SUPREl\ffi COURT 1999 EDITION BETWEEN: NG'ANDU CONSULTING LIMITED APPLICANT AND THE ATTORNEY GENERAL RESPONDENT Before the Hon. Mrs. Justice C. Chinyanwa Zulu in Chambers For tlte Plaintiff : Mr. M. Ndalameta & Ms H. A. Ha/wiindi MAY & Co For the Respondent : Mrs. L. S C!tibowa-Pri11cipal State Advocate, Ms. E. Mtonga-State Advocate & Ms.-R. Mulolwa11i-State Advocate : Attorney General's Chambers RULING CASES REFERRED TO: 1. Fulata Lillian Shawa Siyunyi v The Attorney General 2022/HPI 1346 2. Chitala v The Attorney General (1995-1997) ZR 91 3. Sam Amos Mumba v Zambia Fisheries and Fish Marketing Group Ltd (1980) Z. R. 135 4. Rosalina Investment Ltd and New Balance Athletics Shoes UK Ltd 2018 EWHC 5. Ritas Investment Ltd V Actos Trans/arm Ltd v 4 Others 6. Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and 3 Others 2016/CC/0031 7. CK Scientific Group Zambia Limited v Zambia Wildlife Authority (Appeal No. 162/2008) /2014] ZMSC 130 (15 January 2014) 8. New Plast Industries Limited v Commissioner of lands and Attorney General (2001) ZR 51 9. Dr. Ludwig Sondashi v. Brigadier General Godfrey Miyanda, MP P (sued as National Secretary of the Movement for Multi-Party Democracy) (1995) S. J l.(S. C) 6 LEGISLATION AND OTHER MATERIALS REFERRED TO: J. The Rules of the Supreme Court 1999 Edition (White Book) 2. Zambian Civil Procedure, Commentary and Cases 1.0 INTRODUCTION 1. 1 This is a Ruling on the Application for leave to apply for Judicial Review by the Applicant filed on 17th July, 2023. The application is made by Notice pursuant to Order 53 Rule 3 of the Rules of the Supreme Court 1999 Edition1 and is supported by an affidavit sworn by one ABEL NG' ANDU the Managing director of the Applicant company herein. The Notice contains the reliefs sought and the grounds upon which they are sought. The reliefs sought are:- 1. A declaration that the Respondent's decision to abrogate the Settlement Agreement by not renegotiating with, or reengaging, the applicant in Kasaba Bay is null and void for being an abuse of authority on the part of the respondent; 2. A declaration that the Respondent's decision to abrogate the settlement agreement by not renegotiating with, or reengaging, the -R2- Applicant in Kasaba Bay is null and void for being contrary to the applicant's legitimate expectation and therefore unlawful; 3. An order of certiorari to remove into the High Court for the purpose of quashing the Respondent's decision to abrogate the settlement agreement by not renegotiating with, or reengaging, the applicant in KasabaBay; 4. Damages against the Respondent, particularly the balance of ZMW 27 200 710.50 on the originally due amount, interest on the previously waived ZMW 27 200 710.50, interest on the delayed installment payments in the total amount of ZMW 127 650 491.90 up to 5 December 2022 when the final installment was paid and idle time charges of ZMW 149 916 751.32 for Miss Feasance in public office; 5. An order of mandamus directed to the respondent to renegotiate with or reengage, the applicant in Kasaba Bay or pay the applicant for loss suffered; 6. If leave to apply for Judicial Review is granted, a direction pursuant to Rule 3 (JO) (a) of Order 53 of the Rules of the Supreme Court that such grant should operate as a stay of the decision of the respondent along with a stay of the Request for Expressions of Interest, pending the determination of the Judicial Review; 7. The Applicant hereby requests a hearing of this application before the Judge pursuant to Rule 3 (3) of Order 53 of the Rules of the Supreme Court,· 8. If leave to apply is granted, a direction that the hearing of the application for Judicial Review be expedited; 9. An order for costs; 10. That all necessary and consequential directions be given. 2.0 The grounds upon which the above reliefs are sought are: 2.1 Legitimate Expectation -R3- 1. The legitimate expectation in this case was created by the Ministry of Transport and Logistics signing the Settlement Agreement. The Applicant thereby believed that it would receive the benefit of advantage of working on the Kasaba Bay, having agreed on a lower payment and frozen interest in the Settlement Agreement. 2.1.2 Procedural Impropriety 2. The Respondent's decision has adversely affected the Applicant. It is contended that there was a mandatory duty on the Respondent to negotiate the whole issue of the Kasaba Bay Project with the Applicant, and negotiate in good faith. 2.1.3lliegality 3. It is contended that the Respondent acted illegally by its failure to give effect to the provisions of the Settlement Agreement when it advertised the Request for Expression of Interest. The Respondent ignored the law and the true construction of the Settlement Agreement. 2.1.4 Irrationality 4. It is completely unreasonable for the Respondent to proceed with the Request for Expression of Interest. Allowing this to stand would be allowing public officers to wantonly apply the law that they have a duty to safeguard and this goes against the Rule of Law. It is unreasonable for the Respondent to take the position that rescoping of the project in Kasaba Bay necessarily means that the Settlement Agreement cannot be complied with in terms of renegotiating and reengaging the Applicant. 3.0 AFFIDAVIT EVIDENCE 3.1 The averments of the affidavit verifying facts, which was deposed by Abel Ng' andu, were inter alia that the Applicant entered into a contract as consultant for Project Management Services for construction of the Kasaba Bay Airport Runway with the government of Zambia through the Ministry of Communications and Transport, -R4- now called the Ministry of Transport and Logistics, on 11 th December 2009. A copy of the said contract is found on pages 1 -70 of the Applicant's bundle of documents. That after several suspensions of the project due to delay in payments and Anti-Corruption Commission investigations, the project was suspended in January 2015. That, however, the contract for the project remained valid and binding as the same was not terminated. 3.2 The deponent went on to depose that as of February 2015, the Applicant had completed 76% of the work on the project for which he claimed a total payment of ZMW 180 190 699.53. Following this, the parties executed a Consent Settlement Agreement on 2nd February, 2018, which agreement had been approved by the Attorney General. The said agreement is on pages 71 - 77 of the Applicant's bundle of documents. That in the said Consent Settlement Agreement, the Applicant agreed to be paid a reduced amount of ZMW152 989 989, 07 and that the said amount would not accumulate any interest. It was the Deponent's further averment that the consideration for the Applicant foregoing firstly the ZMW 180 190 699.53 and secondly, interest on the negotiated amount was the reengagement of the Applicant to finalize the project based on a renegotiated contract. The reduced amount of ZMW152 989 989, 07 was, though not promptly, paid to the Applicant by the Respondent. 3.3 Furthermore, that instead of reengaging the Applicant, the Respondent, on 3rd may, 2023, advertised a Request for Expression of Interest for consultancy services for amongst other things, supervision of construction works for a greenfield strategic aerodrome at Kasaba Bay. A copy of the said advert, which appeared in the Zambia Daily Mail is at pages 265 to 267 of the Applicant's bundle of documents. The -RS- deponent went on to state that the effect of this advert was that it repudiated the Consent Settlement Agreement as the government would not reengage the Applicant as per the Settlement Agreement. This thus prompted the Applicant to commence the herein proceedings claiming for the aforementioned reliefs. 3.4 The Respondent filed their affidavit and List of Authorities and skeleton arguments in Opposition on 10 August, 2023. The Affidavit was sworn by Paul Mulola, the acting Director in the employment of the Respondent. He deposed therein inter alia that he had been advised by his advocate, which advice he equally believes to be true, that the Applicant's tabulations clearly indicate the purely commercial and contractual nature of the relationship that subsisted between the parties. That the Applicant has demonstrated eloquently and unequivocally why its claim is a matter of private law and not public law. 3.5 On 14th August, 2023, the Applicant filed its Affidavit and List of Authorities and Skeleton Arguments in Reply. The Affidavit was sworn by Abel Ng'andu who swore in the same capacity as that in the Affidavit Verifying Facts. Reacting to the issue of wrong mode of commencement raised by the Respondent in the affidavit in opposition, the deponent stated that, he had been advised by his advocates on record, MAY and Company, which advise he equally believed that, this Court has powers to order that this action continues as though it was commenced by writ of summons, if it is inclined to agree with the Respondent that the Applicant commenced this matter using a wrong mode of commencement. -R6- 4.0 HEARING IN COURT 4.1 At the hearing of the matter, Counsel for the Applicant relied on the Notice of application for leave to apply for Judicial Review, affidavit verifying facts filed into court on 17111 July, 2023 and on the affidavit and skeleton arguments in reply dated 14111 August 2023. That on the strength of the said documents, it was his prayer that the application for leave to commence Judicial Review proceedings be granted as the Applicant has met the test for granting leave for Judicial Review. That is to say, there is an arguable case fit for substantive hearing. 4.2 Counsel for the Respondent equally relied on the documents on record, that is, the affidavit in opposition sworn by Paul Mulola and dated 10th August, 2023 and the list of authorities and skeleton arguments of even date. Counsel went on to put reliance on the case of Lillian Fulata Siyunyi V The Attorney general1 to support their argument that at this stage what the Applicant ought to be doing is to show this court that there is a case fit for substantive hearing.-It was Counsel's submission that in the aforesaid case, three things were highlighted as satisfying the aforementioned test namely: 1. Does the Applicant have sufficient interest, 2. Has the application been made promptly, and 3. Is there a sufficiently arguable case to merit investigation at a substantive hearing. 4.3 It was Counsel's submission that the Applicant glossed over this threshold test until prompted by the Respondent to address it. It was submitted that the Applicant is trying to impugn through Judicial Review, proceedings of a private nature as they arose from a contractual relationship that existed between the Applicant and -R7- Respondent. That by these proceedings the Applicant is trying to enforce private rights enshrined in a Consent Settlement Agreement between the parties which is exhibited in the Applicant's Bundle of Documents on pages 71 to 77. In this regard, that the Applicant cannot enforce rights under a contractual relationship by way of Judicial Review as it is restricted to public law rights. Further, that the exercise of cancelling the contract was not in this case a public duty or function by the Respondent nor did it amount to a public power and as such should not be subject to the controls of public power. In summation on this point, that the relationship between the parties is governed by contract law which falls under private law as opposed to public law and as such is not subject to Judicial Review. Reliance was placed on Order 53 Rule 14(33) of the Rules of the Supreme Court. 4.4 It was Counsel's submission that the Applicant has no arguable case because there was a drastic change in the government's policy regarding the project that was the subject matter of the Consent Settlement Agreement. This being that the government decided to discontinue the project as it has decided to take on a different and much bigger project than the initial one which encompasses a large scope of work that was not in the initial project. This includes, the construction of a green field airport, staff housing, a police post, navigation and surveillance facilities, and other ancillary structures. The Court was referred to page 265 of the Applicant's Bundle of Documents which was stated sets out the extent of the government's new policy directive. It was submitted that a change in government policy is a well established frustrating event hence, the Ministry's hands were tied. Accordingly, that the contractual relationship that existed between the -RS- parties was terminated. Reliance was placed on the case Sam Amos Mumba v Zambia Fisheries and Fish Marketing Group Ltd2 . 4.5 Counsel went on to submit that the agreement between the parties was an agreement to negotiate. That the nature of the negotiation entailed that either party pursue their interests and there is no law that stops either party from withdrawing from such an agreement for any reason or absolutely none. Reliance was placed on the case Rosalina Investment Ltd and New Balance Athletics Shoes UK Ltd3 at page 1014 QB. 4.6 It was Counsel's submission that guidance was given in the Fulata case1 at pages 36 to 39 on the aspect of time in judicial review proceedings. This being that parties should not be at liberty to nitpick on when time starts to run. That in the said case, the Court when determining when the grounds for judicial review objectively arose found that the first letter written by the Public Authority was the decision date and therefore that was the date that the applicant should have used to compute the time within which to institute Judicial Review proceedings. In casu, that the Applicant's application for leave is out of time. Reliance was placed on the case Ritas Investment Ltd V Actos Transfann Ltd v 4 Others4 . That this court was stripped of jurisdiction to entertain this application in April 2023 when time elapsed as no application for extension of time had been made. 4. 7 In conclusion, it was Counsel's submission that there is no arguable case that has been brought to court by the Applicant. 4.8 In reply, it was Counsel for the Applicant's submission in relation to the issue of time that there is no other documentary evidence on record indicative of a policy shift directive other than the government policy -R9- referred to by Counsel for the Applicant on page 265 of the Applicant's Bundle of Documents dated 3rd May 2023. Further, that the Fulata case1 at page 39 paragraph 74 guides that even if one is out of time, time can be extended. 4. 9 As regards the subject matter of the application being of a private nature, that this was clearly addressed in the Affidavit in Reply particularly in paragraphs 2.7 to 2.10. It was also Counsel's submission that despite a change in government policy being a well-established frustrating event, the law in respect of frustration is clear, this being, that one cannot rely on its own default as frustration. Further, that reliance on the Sam Amos Mumba2 case does not aid the Respondent's case because neither of the parties in the said case was government. Furthermore, that the argument that no law stops a party from deciding not to negotiate is ill fated for two reasons. The first being that on the documents on record renegotiation is not the issue but re-engagement. Reference in this regard was made to Page 73 line 3 of the Applicant's Bundle of Documents as referring to re-engagement. Secondly, that even assummg that the issue was renegotiation, allowing the Respondent not to renegotiate would be allowing the Respondent benefit from the Consent Settlement Agreement to the detriment of the Applicant. 4. 7 It was Counsel for the Applicant's argument that even if any of the arguments advanced by the Respondent were to succeed, this Court has power to continue the matter as though began by writ. 4.8 In conclusion it was Counsel for the Applicant's prayer that this Court grants the Applicant leave to apply for Judicial Review. Further, that in the event this Court is of the view that leave ought not to be granted, -RIO- that this Court order that this matter proceeds as if commenced by writ of summons since in any event a decision to not grant leave to apply for Judicial Review will not determine the dispute that exists between the parties. 5.0 CONSIDERATION AND DECISION OF TIIlS COURT. 5.1 I am highly indebted to both Counsel for the List of Authorities and skeleton arguments in support of their respective arguments. I shall surely take the same into consideration as I determine this application. 5.2 In this application before me, the Applicant is seeking leave of this Court to commence Judicial Review. What then is Judicial Review? In Zambian Civil Procedure, Commentary and Cases2 by Patrick Matibini it was stated that:- "Judicial Revieff! refers to the power of the court to supervise inferior courts, tribunals, public bodies and persons entrusted with statutory powers in the exercise of those powers" 5.3 The rules for Judicial Review as provided by Order 53 of the Rules of the Supreme Court constitute a uniform, flexible and comprehensive procedural code for the exercise by the Court of its supervisory jurisdiction by way of judicial review over the proceedings and decisions of inferior courts, tribunals, or other persons or bodies which perform public duties or functions. Judicial Review, therefore, is concerned with the lawfulness of a decision or action made by a public body. 5 .4 The hearing of an application for judicial review starts with a notice of application for leave to apply for judicial review. Order 53 rule 3 (1) provides that- -RU- "No application for judicial review shall be made unless the permission of the court has been obtained in accordance with this rule." 5.5 An application for Judicial Review is therefore, a two-stage process. The applicant must first apply for permission to apply for Judicial Review and then, if such leave is granted, the applicant proceeds with a substantive application for Judicial Review. 5.6 What is the purpose of the requirement for leave? In considering this question, Ngulube CJ, as he then was, in the case of Chitala v The Attorney General (1995-1997) ZR 91 5 stated as follows:- "The sum and substance of the Order is that the purpose of the requirement of/eave is threefold, namely, a) To eliminate at an early stage any applications which are either frivolous or vexatious or hopeless b) To ensure that an applicant is only allowed to proceed if the court is satisfied that there is a case fit for further consideration; and c) To prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error." 5. 7 From the foregoing definition of Judicial Review, it is apparent that Judicial Review is concerned with issues relating to Public Law and not Private Law. It has been argued by the Respondent that the matter herein emanates from a purely commercial and contractual relationship that subsisted between the parties. That the Applicant has hence eloquently and unequivocally demonstrated that its claim is a matter of private law and not public law. The crucial issue that I should thus consider, before delving into the question whether this matter is one that is fit for further consideration, is whether or not the application before me is, as argued by Counsel for the Respondent, irregular and -R12- misconceived due to that it is based on a commercial and contractual transaction between the parties and, therefore, falls under the ambit of private law and not public law. This is because the said issue touches on this Court's jurisdiction to determine this matter. The Constitutional Court has guided in the case of Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu and 3 Others that': - "It is trite that whenever the jurisdiction of the Court, to hear a matter is raised, that issue must be addressed and determined before the hearing of that matter can proceed. This is because if a Court proceeds to hear a matter without jurisdiction, the resulting trial or hearing would be a nullity." 5. 8 The incontrovertible facts of this case at hand are that the Applicant entered into a contract as consultant for Project Management Services for construction of the Kasaba Bay Airport Runway with the government of Zambia through the Ministry of Communications and Transport, now called the Ministry of Transport and Logistics on 11 th December 2009. That after several suspensions of the project due to delay in payments and Anti-Corruption Commission investigations, the project was suspended in January 2015. 5. 9 Further, that for the work already done on the project, the Applicant demanded to be paid an amount of ZMW 180 190 699.53. However, the parties later executed a Consent Settlement Agreement on 2nd February, 2018, in which the Applicant agreed to be paid a reduced amount of ZMW152 989 989, 07. The said amount would also not accumulate any interest. It was the Deponenfs further averment that the consideration for the Applicant foregoing firstly the ZMW 180 190 699.53 and secondly, interest on the negotiated amount was the -R13- reengagement of the Applicant to finalize the project based on a renegotiated contract. 5.10 Furthermore, that instead of reengaging the Applicant, the Respondent, on 3rd may, 2023, advertised a Request for Expression of Interest for consultancy services for amongst other things, supervision of construction works for a greenfield strategic aerodrome at Kasaba Bay. The effect of the said advert, according to the Applicant, being that the Agreement was repudiated, the Applicant commenced the herein proceedings claiming for the aforementioned reliefs. 5.11 From the above facts, it is indeed clear, as argued by the Respondent, that the matter between the parties emanate from the contractual relationship that existed between the Applicant and the Respondent. 5.12 The case of CK Scientific Group Zambia Limited v Zambia Wildlife Authority (Appeal No. 162/2008) [2014] ZMSC 130 (15 January 2014)7 is instructive on the issue relating to cases whose circumstances are as in the case at hand. In that case, the Supreme Court stated as follows: "Order 53/14/25 provides that: "Judicial Review will not lie against a person or body carrying out private law and not public law functions" Order 53/14/54 provides that; "the applicant for leave must: a. have a sufficient interest; have a case sufficiently arguable to merit investigation at a b. substantive hearing; and c. apply for leave promptly." -R14- From the above, it is clear that an applicant for leave to commence Judicial Review proceedings needs to show that he or she has an arguable case with a likelihood of succeeding in the substantive matter. In tbe case before us, the application for leave arose out of a failure by tbe Respondent to award a tender. The Respondent invited people or companies to tender but later, tbey cancelled tbe tender. This is clearly a matter of private law and not public law. Issues of tender or cancellation of a tender fall under tbe realm of tbe law of contract, whicb is private law. It is clear tbat Judicial Review is not concerned with cballenging decisions tbat infringe on private law rights but witb tbose that infringe on public law rights. In tbe case of R. Disciplimuy Committee of the Jockey Club, exparte. Tbe Aga Khan (5) the Court of Appeal beld that Judicial Review did not lie against a decision of the Jockey Club Disciplinary Committee because tbe applicant was someone who bad entered into a contract with the Club and tberefore tbe case was witbin tbe province of private law, not public law. We agree with tbe argument that tbe Respondent is a public body but we also note that tbe powers it was exercising when it decided to cancel the tender were those to do witb private law. The Respondent was exercising private law and not public law functions when it cancelled tbe tender. It is clear from the reading of Order 53, Rules of the Supreme Court, 1999 tbat matters of private law are not amenable to Judicial Review proceedings. It is clear that a matter like this one has no prospect of succeeding in the substantive hearing. We tberefore do not believe tbat a matter like th.is one is fit for further investigation on the hearing of a substantive matter" (1mderli1tittg for emphasis 011/y ). 5.13 Similarly, in the case before me, the application for leave arose out of a failure by the Respondent to reengage the Applicant as purportedly agreed in the Consent Settlement Agreement. The powers that the Respondent was exercising when it allegedly decided to abrogate the Settlement Agreement, even though being a public body, were those to do with private law. A decision to terminate a contract as is purported in this case at hand, is one which has its proximate source in the contract itself rather than the statute which granted the public body, in this case, the Respondent, the powers to contract in the first place. The -R15- rights and obligations of the parties thus arise out of the terms of the contract, in the case at hand, the Consent Settlement Agreement. Consequently, the only remedies available to the parties to the contract would be the ordinary contractual remedies. I accordingly, and as guided by the Supreme Court in the above cited case, find that the matter before me is clearly a matter of private law and not public law and therefore not amenable to Judicial Review. 5.14 Consequently, the application for leave to commence Judicial Review Proceedings pursuant to Order 53 Rule 3 of the Rules of the Supreme Court is improperly before this Court as aforementioned. 5.15 It was further argued by the Applicant that if this Court is of the view that this matter was supposed to have been commenced by writ and not Judicial Review, then this Court must allow the matter to proceed as though it was commenced by writ. However, the case of New Plast Industries Limited v Commissioner of lands and Attorney General8 is instructive on the fate of a matter which has been commenced using a wrong mode of commencement as follows: "We are satisfied that the practice and procedure in the High Court is laid down in the Lands and Deeds Registry Act. The English White Book could only be resorted to if the Act was silent or not fully comprehensive. W c therefore hold that this matter having been brought to the High Court by way of Judicial Review, when it should have been commenced by the way of an appeal, the court had no jurisdiction to make the reliefs sought. This was the stand taken by this court in Chikuta v Chipata Rural Council (1) where we said that there is no case in the High Court where there is a choice between commencing an action by a writ of summons. We held in that case that where any matter is brought to the High Court by means of an originating summons when it should have been commenced by a writ, the court has no jurisdiction to make any declaration. The same comparison is applicable here. Thus, where any matter under the Lands and Deeds Registry Act, is brought to the High Court by means of Judicial Review when it should have been brought by -R16- way of an appeal, the court has no jurisdiction to grant the remedies sought." ( u11derli11ing for emphasis 011/y) 5.16 Similarly, in the case of Dr. Ludwig Sondashi v. Brigadier General Godfrey Miyanda, MP9 (sued as National Secretary of the Movement for Multi-Party 15 Democracy) a matter where the appellant was expelled from the political party, commenced the action by way of judicial review, the High Court dismissed the action. On appeal, the Supreme Court agreed that the matter should have been commenced by writ and proceeded to dismiss the appeal. 5.17 I equally, therefore, hold that this matter having been brought to the High Court by way of Judicial Review, when it should have been commenced by writ of summons, this Court has no jurisdiction to determine the application. Any order that this Court may make herein, shall be a nullity. I therefore equally decline to order that this matter be deemed to have been commenced by writ. 5.18 The application is accordingly dismissed. · 5 .19 I award costs for this application to the Respondent, to be taxed in default of agreement. 5.20 Leave to appeal is granted. Delivered this 26th day of March, 2024 C. Chinyanwa Zulu JUDGE -Rl7-