Robson Malipenga v Law Association of Zambia (Appeal 1 of 2016) [2018] ZMSC 401 (26 January 2018)

J1 Selected Judgment No. 3 of 2018 (73) IN THE SUPREME COURT OF Z. HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NO. 01/2015 SCZ/8/148/2014 IN THE MATTER OF :ules of the ^^-iprBrrie*Court (1999 edition) AND IN THE MATTER OF An application for Judicial Review AND IN THE MATTER OF A decision made by the Law Association of Zambia in late March/early April, 2014 and communicated to the Applicant on 2nd April, 2014 to have the applicant produce documents belonging to Robson Malipenga & Co. for inspection by an Accountant BETWEEN: ROBSON MALIPENGA APPELLANT AND THE LAW ASSOCIATION OF ZAMBIA RESPONDENT Coram: Mwanamwambwa DCJ, Hamaundu and Kabuka, JJS on 1st August, 2017 and 24th January, 2018 For the Appellant : Messrs Ellis & Co (filed notice of non-appearance) For the Respondent: Mr A. J. Shonga, S. C., Messrs Shamwana & Co JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court J 2 (74) Cases referred to: 1. Counsel of Civil Service Unions v Minister for the Civil Service [1985] A. C. 2. Puhlhofer and another v Hillingdon London Borough Council (1986) I All E. R 467 Legislation referred to: The Legal Practitioners Act, Chapter 30 of the Laws of Zambia, S.68(3)(4)(5) The Law Association of Zambia Act, Chapter 31 of the Laws of Zambia, S 13 This appeal is against the refusal by the High Court to grant the appellant leave to file an application for judicial review. The background to this appeal is this: The appellant is a legal practitioner who is a member of the Law Association of Zambia, the respondent herein. The respondent, on the other hand, is a statutory body enacted by the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia. It oversees and regulates legal practice in Zambia. There is established under Section 13 of the said Act, the Legal Practitioners Committee which performs many functions on behalf of the Law Association of Zambia, including matters involving discipline of legal practitioners. In January, 2014 the Legal Practitioner’s Committee received two complaints of professional misconduct against the appellant. One complaint was from a law J 3 (75) firm going by the name of Lukona Chambers. That firm accused the appellant of touting and wooing its clients over to his firm. The other complaint was from clients of Lukona Chambers, who accused the appellant of having started representing them in their matter without their instructions or consent. The clients complained, particularly, that the appellant had received, on their behalf, money due to them from the Government; and was paying it to them over the counter, instead of depositing it in their accounts. The clients even submitted to the Law Association of Zambia a letter by the appellant’s bankers, First Alliance Bank, written to the appellant to inform him that the clients account held by his firm was overdrawn. The Legal Practitioner’s Committee decided to pursue the latter aspect of the complaints and sought an explanation from the appellant as to why he was operating the client’s account in that manner. The appellant responded that he had not obtained any overdraft facility on the account; but that the overdrawn position had arisen because of the up-grading of the clearing system. He enclosed a letter from the bank which stated that the overdrawn J4 (76) position of the account had been reversed after unapplied transfers were effected. In the meantime, the appellant sued the managing partner of Lukona Chambers (Nelly Mutti) and the clients who had signed the letter of complaint to the Law Association of Zambia in the High Court. The suit was for defamation. On or about 2nd April, 2014, the Legal Practitioner’s committee appointed a firm of accountants to audit the appellant’s client account for the period 1st June, 2013 to 28th February, 2014. This drew protests from the appellant’s advocates, who reminded the committee about its earlier directive to adjourn the complaints sine die pending the determination of the appellant’s action in the High Court. The advocates went on to point out that they had assumed that, by that directive, the audit into the appellant’s bank account would, similarly, have to pend. The Committee dismissed the protests, stating that a very visible overdraft had been detected on the appellant’s client account. The appellant, then, sought leave to apply for judicial review; seeking the remedies of certiorari, prohibition and declaration. J 5 (77) According to the appellant, the decision by the Law Association of Zambia was; procedurally improper, irrational, unfair, wrong in law and made in bad faith. The appellant also charged that the Law Association of Zambia acted without, or in excess of, jurisdiction. The learned judge in the High Court observed that Section 68(3) of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia, empowered the Law Association of Zambia, whenever a complaint had been received that a legal practitioner had not complied with provisions relating to maintenance of accounts, to appoint an accountant to enquire into the allegation. The learned judge observed, further, that, since the action which the appellant had commenced against Nelly Mutti and the clients was not about compliance with the Legal Practitioners Rules, but for defamation only, the issue of deferring the complaint’s sine die pending resolution of that action did not arise. With those observations, the learned judge found that there was no case fit for further investigation; and that, therefore, the application was frivolous. Hence this appeal. J6 (78) The appellant has advanced five grounds of appeal, as follows: “1. The learned High Court Judge misdirected herself when she found that this case was not fit for further investigation, which said finding is not supported by law. 2. The learned High Court Judge erred in law and in fact when she dismissed the appellant’s application for leave to apply for judicial review without considering the grounds on which the application had been brought. 3. The learned High Court Judge misdirected herself when she dismissed the appellant’s contention that the respondent’s decision to proceed to audit his books of account notwithstanding that his client’s account is already the subject matter of cause No. 2014/HP/0270 is irrational and wrong in law. 4. The learned High Court Judge erred in law and in fact when she failed to consider the fact that the respondent had ordered an audit when the appellant’s bank had clearly confirmed that there was no overdraft on the appellant’s account. 5. The learned High Court Judge erred in law and fact when she failed to consider the legal privileges of the appellant’s various clients in respect of whom the respondents have ordered documents for the period 1st June, 2013 to 24th February, 2014 to be availed.” On behalf of the appellant, the first, second, fourth and fifth grounds were argued together. Citing Order 53, rule 4 of the Rules of the Supreme Court (White Book), it was submitted that the J 7 (79) purpose of the requirement for leave to apply for judicial review is: “(a) To eliminate at an early stage any applications which are either frivolous, vexatious or hopeless; and (b) To ensure that an application is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration” According to learned counsel for the appellant, an applicant for leave to apply for judicial review need only show that his case is fit for further consideration; upon being granted leave, he may take steps to further consolidate his case. Order 53, rule 6(2) was cited in support of that submission. Applying the foregoing propositions on the High Court’s decision, counsel raised issue with the statement of the court which said: “on the face of it, it appears that the respondent was exercising its powers in accordance with the provisions of the Legal Practitioners Act...” It was argued that the approach which the court took is not supported by law because a decision can still be found to be unreasonable or irrational even if it is made within the powers provided by law. To that end, counsel submitted that the appellant had set out the reliefs that he sought; one of them being a declaration that the decision by the Law Association of Zambia was J8 (80) an abuse of power, while others were that; the Association acted without, or in excess of, jurisdiction; the decision was procedurally improper and so on. Counsel also submitted that the appellant did set out the facts upon which he relied, namely; that the complaint before the Law Association of Zambia was with regard to how he had managed his client account; that the issue had now become the subject of the action which he had commenced; that the period over which the Law Association of Zambia had ordered an audit included the period when he had been retained in place of Messrs Lukona Chambers; and, that, while the audit was ordered on the pretext of an overdraft on the clients account, the Law Association of Zambia had proceeded with the order notwithstanding that the bank had stated that the appellant had never applied for overdraft facilities. In the course of the foregoing submissions, we were referred to the often-quoted dictum of Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service1 The dictum classifies the heads on which administrative action is subject to control by way of judicial review as being; (i) illegality (ii) irrationality, and, (iii) procedural impropriety. J 9 (81) Counsel referred us also to the following statement in Lord Brightman’s judgment in Puhlhofer and another v Hillingdon London Borough Council(2): “The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness...’’(page 474). Counsel for the appellant, then, submitted that the letter of 6th June, 2014 from the Law Association of Zambia stating that the audit was intended to clear the appellant from the perception of misconduct, the fact that the Association usurped the function of the High Court by ordering the audit and, also, the fact that the Association had gone against its own decision of 20th March, 2014 to adjourn the complaints sine die pending the determination of the High Court action, was evidence that the Law Association of Zambia had abused its power under Section 68(3) of the Legal Practitioners Act. In the circumstances, counsel argued, it could not be said that the appellant had failed to demonstrate a case fit for further investigation. We were urged to allow the appeal. J 10 (82) In response, Mr Shonga, State Counsel, submitted that this appeal turns primarily on one point only; whether or not the learned judge in the High Court correctly found that there was no case fit for further investigation. Learned State Counsel observed that the appellant did not properly set out the recognized grounds for judicial review; but instead set out a recount of facts. It was submitted that only two paragraphs, out of fifteen, on the document setting out the grounds had a semblance of grounds recognizable in judicial review; and that these paragraphs stated that the decision of the Association was procedurally improper, irrational, unfair, wrong in law, was made in bad faith and was made without, or in excess of jurisdiction. Learned State Counsel then submitted that the affidavit verifying the facts was devoid of any evidence which tended to show prima facie that the decision of the Law Association of Zambia could fall under any of the alleged grounds. It was argued that, on the other hand, the power which Section 68(3) of the Legal Practitioners Act gives to the Law Association of Zambia is very clear and, therefore, that, in the absence of evidence that the exercise of that power was used in excess, the learned judge in the J11 (83) court below, correctly, refused to allow the appellant to proceed to issue judicial review on this ground. With regard to the relief of prohibition, learned State Counsel - drew our attention to the claims on the writ of summons in the action filed by the appellant and submitted that that action was for defamation and could not be used to prevent the Law Association of Zambia from carrying out its statutory functions. With those arguments, counsel submitted that the first, second, fourth and fifth grounds are without merit. We have heard the arguments on both sides. The parties have correctly set out the purpose for applying for leave to commence judicial review proceedings; namely; (i) to eliminate frivolous vexatious and hopeless applications and; (ii) to allow only applications which demonstrate that there is a case fit for further investigation. In our view, the facts which an applicant presents before the court are important in determining whether an application is frivolous or not. In this case, we have already set out the facts at the beginning. The following aspects of those facts appear to be the ones that have aggrieved the appellant: First, the fact that although he sued the complainants in the High Court for defamation over J 12 (84) their allegation, the Law Association of Zambia still went ahead to order an audit of the account. Secondly, that, although the Committee had directed that the complaints be adjourned sine die pending the appellant’s action in the High court, it still went ahead to order the audit: Thirdly, that notwithstanding that the appellant’s bank had explained that the appellant had not obtained overdraft facilities, the Committee still went ahead to order an audit. It is on these aspects of the facts that the appellant complains that the decision of the Law Association of Zambia was without, or in excess of, jurisdiction; was procedurally improper, was unfair; was made in bad faith; and, was irrational. These facts must be examined in light of the statutory provisions in the Legal Practitioners Act. In this case, the court below found Section 68(3) to support the Association’s decision. Section 68(3) provides: “where a complaint is received by the Association that a practitioner has not complied with the provisions of this part or that a practitioner or a clerk or servant of a practitioner has been guilty of dishonesty in connection with that practitioner’s practice as a practitioner or in connection with any trust of which that practitioner is a trustee, then, without prejudice to the other provisions of this Act, the Association shall appoint a person publicly carrying on the profession of accountant in J 13 (85) Zambia to be the accountant, to inquire into and report on the allegations made in such complaint, and the accountant shall have the power- fa) to require the practitioner to produce, at a time and place fixed by the accountant, books of accounts, bank passbooks, statements of account, vouchers and any other necessary documents for inspection; (b) to require the practitioner or any clerk or servant of the practitioner to explain in writing any matter arising out of the books and documents produced or not produced before the accountant, including any entries or absence of entries in the books and documents produced.” The part under which Section 68(3) appears, regulates the manner in which legal practitioners should maintain accounts. The full context of Section 68 can be understood upon reading Section 68(4) and (5). These read: “(4) On completion of the inquiry the accountant shall submit to the Association a report together with the explanations, if any, received by him, and the Association, unless it is satisfied that no prima facie case has been disclosed against the practitioner, shall make an application to the Disciplinary Committee, under section twenty-two, to strike the name of the practitioner off the Roll or to require the practitioner to answer allegations made in an affidavit, and shall submit the report and the explanations, if any, along with the application. J 14 (86) (5) The report of the accountant shall be admissible in and treated as evidence in the proceedings before the Disciplinary Committee.” Clearly, the power given to the Law Association of Zambia under Section 68, generally, is for the purpose of conducting preliminary investigations in order to determine whether there is a case of professional misconduct to forward to the Disciplinary Committee established under the Legal Practitioners Act. In terms of jurisdiction, or want thereof, it is clear that Section 68 (3) of the Legal Practitioner’s Act, Chapter 30 of the Laws of Zambia clothes the Law Association of Zambia with powers to do what it did in this case. In terms of the contention by the appellant that the decision was in bad faith, the court below was on firm ground when it observed that the appellant’s action in the High Court was for defamation and could not be used to suspend enforcement of the Legal Practitioner’s Rules. Therefore, even assuming that the Legal Practitioner’s Committee had proposed to adjourn the complaints sine die pending the High Court action, that was a misconception on the part of the Committee because the action did not impugn the manner in which the Association was applying Section 68 of the Legal Practitioner’s Act. Finally, even if the appellant’s bank had J 15 (87) explained that the appellant had not obtained overdraft facilities, there still remained the fact that the Legal Practitioner’s Committee had before it the complainants and, under the Legal Practitioners Act, it was mandated to appoint an accountant to audit the appellant’s books. It was only the report of such accountant that would exonerate the appellant. The answer to all the questions that the appellant had posed in seeking leave for judicial review were readily available from the material that had been presented before the court below. It, therefore, did not require a further investigation to find them. In the circumstances, the court below was on firm ground when it held that there is no case fit for further investigation. The appeal stands dismissed, with costs to the respondent. DEPUTY CHIEF JUSTICE J 16 (88) E. MrHamaundu SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE