Nkoma v The Attorney General (Appeal 162 of 2009) [2015] ZMSC 170 (26 March 2015)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA/NDOLA (Civil Jurisdiction) APPEAL NO. 162/2009 SCZ/8/207/2009 BETWEEN: SHADRECK NKHOMA Appellant AND THE ATTORNEY GENERAL Respondent Coram: Chibesakunda, Ag CJ, Wanki, JS, and Lengalenga, Ag JS On 10th July, 2014 and 26th March, 2015 For the Appellant: Mr. S. S. Zulu, SC - Messrs Zulu & Company For the Respondent: Mr. F. Imasiku - Senior State Advocate JUDGMENT LENGALENGA, Ag JS, delivered the Judgment of the Court. Cases referred to: 1. R v MENTAL HEALTH REVIEW TRIBUNAL, Ex-p CLATWORTH (1985) 3 ALL E R 699 at 704 2. COUNCIL OF CIVIL SERVICE UNIONS & OTHERS v MINISTER FOR THE CIVIL SERVICE (1985) AC 374 3. ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION (1984) 3 ALL E R 935 JI 4. THE PEOPLE v HACHOOSE (1947) ALL E R 680 5. NYAMPALA SAFARIS (Z) LTD & OTHERS v ZAMBIA WILDLIFE AUTHORITY & OTHERS (2004) ZR 49 6. FREDERICK JACOB TITUS CHILUBA v ATTORNEY GENERAL (2003) ZR 153 7. SABLE HAND ZAMBIA LTD v ZAMBIA REVENUE AUTHORITY (2005) ZR 109 8. COUNCIL OF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR CIVIL SERVICE 9. R v INDEPENDENT TELEVISION COMMISSION, Exp TSW BROADCASTING LTD Legislation referred to: 1. THE SUBORDINATE COURTS ACT, CAP 28 OF THE LAWS OF ZAMBIA - Sections 4, 7, 19 and 55. Other works referred to: 1. SUPREME COURT PRACTICE, 1999 Edition, Volume 1 When this appeal was heard, we sat with the Honourable Lady Justice Chibesakunda who has since retired. This judgment, therefore, is by the majority. This is an appeal against the judgment of the Lusaka High Court at Lusaka delivered on 19th August, 2009 in which the learned trial Judge dismissed the Appellant's application for judicial review by which the Appellant in the court below sought the following relief: J2 1. An order for certiorari that the Judicial Service Commission's decision to dismiss the applicant's appeal against his dismissal from the Judiciary was done in bad faith and is, therefore, unreasonable and must be quashed and that the applicant be re-instated with immediate effect to the position of Magistrate Class II (with full benefits)... 2. If leave is granted, a direction that the hearing of the application for Judicial Review be expedited. 3. An order for damages. 4. Costs. The facts of this case are that the Appellant is a former employee of the Judiciary who was serving as a Magistrate Class II at Lusaka Magistrates Courts Complex at the time of his dismissal from employment by the Judicial Service Commission on 7th May, 2008. His dismissal was based on a charge of handling a criminal case without allocation by his supervising officer, the Acting Principal Resident Magistrate at that time. He appealed against the said dismissal by a letter dated 2nd June, 2008 addressed to the Chairman of the Judicial Service Commission. By a letter dated 22nd September, 2008, the Secretary of the Judicial Service Commission informed the Appellant that his appeal was unsuccessful. J3 It is against this background that the Appellant took out action against the Respondent seeking judicial review of the decision by the Judicial Service Commission on the following grounds: (1) Bad faith, Wednesbury unreasonableness - that the Respondent acted in bad faith leading to absurd illegal decision based on rumours, suspicion and without regard to other people's rights (2) Procedural impropriety as held in R v MENTAL HEALTH REVIEW TRIBUNAL, Ex-p CLATWORTH1 (3) Illegality - as propounded by Lord Diplock in COUNCIL OF CIVIL SERVICE UNIONS & OTHERS v MINISTER FOR THE CIVIL SERVICE2. After considering the affidavit evidence and the applicant's final submissions, the learned trial Judge dismissed all the grounds for judicial review and consequently dismissed the Appellant's application for judicial review with costs. He further set aside the stay of the Commission's decision dismissing the Appellant, granted on 3rd November, 2008. Dissatisfied with the said decision, the Appellant appealed to this Court advancing five grounds of appeal as follows: 1. The learned trial Judge was wrong at law by finding that the Appellant's dismissal as a Magistrate by the Judicial Service Commission on 7th May, 2008 for disregarding J4 (alleged) laid down procedures in handling cases did not fall within "Wednesbury unreasonableness." 2. The learned trial Judge was wrong at law by finding that the dismissal of the Appellant as a Magistrate by the Judicial Service Commission on 7th May, 2008 for disregarding (alleged) laid down procedures in handling cases did not constitute an "illegality." 3. The learned trial Judge was wrong at law by finding that the Appellant's dismissal as a Magistrate by the Judicial Service Commission on 7th May, 2008 for disregarding (alleged) laid down procedures in handling cases did not constitute "procedural impropriety." 4. The learned trial Judge was wrong at law by failing to find that the hearing of the Appellant's appeal by the 196th Meeting of the Judicial Service Commission against dismissal of the Appellant as a Magistrate by the 195th Meeting of the same Judicial Service Commission constituted procedural impropriety. 5. The learned trial Judge misdirected himself by failing to find that the 196th Meeting of the judicial Service Commission failed to address the legal issues which the Appellant raised in his letter of Appeal dated 2nd June, 2008 and marked "SN2" attached to his Affidavit in support of Originating Notice of Motion for Judicial Review. The Appellant's heads of argument and list of authorities were filed in court on 9th June, 2014 on behalf of the Appellant. Learned State Counsel, Mr. Sebastian Zulu relied on them. J5 In support of ground one, it was submitted that at page 16, lines 25 to 27 of the Record of Appeal, the learned trial Judge found that the test of "Wednesbury unreasonableness" did not apply in this matter when he stated: "The test that the Applicant used was that of bad faith (which was not articulated) and alleged failure to be given an opportunity to be heard. These are the wrong tests and the application therefore fails on this ground." Learned State Counsel submitted that in COUNCIL OF CIVIL SERVICE UNION v MINISTER OF CIVIL SERVICE Lord Diplock at pages 950 to 951 stated: "By 'irrationality71 mean what can by now be succinctly referred to as 'Wednesbury unreasonableness7 (see ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION3). It applies to a decision which so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.77 It was contended on behalf of the Appellant that the jurisdiction of the Subordinate Courts is conferred by the Subordinate Courts Act, Cap. 28 and not by allocation of a matter to a particular Magistrate by the Principal Resident Magistrate or the chief Resident Magistrate. Section 4 provides: J6 "Each Subordinate Court shall have the jurisdiction and powers provided by this Act and any other written law for the time being in force and shall ordinarily exercise such jurisdiction only within the limits of the District for which each such Court is constituted." Section 7 provides: "Subject to the operation of any express statutory provision providing otherwise, and to the provisions of this Act and the Criminal Procedure Code, all Magistrates shall have and may exercise, in all respects, equal power, authority and jurisdiction, and, subject as aforesaid, any Magistrate may exercise all and any part of the jurisdiction by this Act or otherwise vested in a Subordinate Court, and, for such purpose, shall be and form a court." Section 19 provides: "In the exercise of their criminal jurisdiction, Subordinate Courts shall have all the powers and jurisdiction conferred on them by the Criminal Procedure Code, this Act or any other law for the time being in force." Section 55 provides: "No action shall be brought against any Magistrate in respect of any act done or order made by him in good faith in the execution or supposed execution of the powers and jurisdiction vested in him." It was submitted that from the afore-quoted sections of the Subordinate Court's Act, it was clear that the jurisdiction of the Appellant sitting as a J7 Magistrate was conferred on him by statute and not by allocation to him of a particular case. It was contended on behalf of the Appellant that the practice where individual allocation registers for all Magistrates had been introduced for administrative purposes could not oust the jurisdiction of a Magistrate to hear a matter which had not been so allocated to an allocation had no force of law. It was strongly submitted that the dismissal from the Judiciary of the late Appellant by the Judicial Service Commission on 7th May, 2008 and subsequent confirmation of dismissal was irrational in view of the provisions of sections 4, 7, 19 and 55 of the said Act which confer jurisdiction and affords protection from actions. It was further contended that in his letter of 2nd June, 2008, the Appellant raised questions on what statutory provisions and procedural regulations were relied on by the Judicial Service Commission to support the dismissal (see page 44 to 45 of Record of Appeal). It was further submitted that Mr. Edward Luputa Musona then Deputy Director, Court Operations in the Judiciary and Deputy Secretary of the Judicial Service Commission in his affidavit sworn on 26th January, 2009 in paragraph 5 deposed that: J8 "The Applicant presided over a matter that was not allocated to him as per established procedure and was asked by the Principal Resident Magistrate to show cause why disciplinary action could not be taken against him etc." (See pages 54 to 56 of Record of Appeal). It was argued that the Judiciary failed to refer to any statutory provision to support the allegation or charge. Learned State Counsel submitted that the test of "Wednesbury unreasonableness" should apply in this case where the Judicial Service Commission dismissed the late Appellant on the ground that he heard and adjudicated on a matter that had not been allocated to him by the Principal Resident Magistrate. In ground two, learned State Counsel referred us to the judgment on Record in which the learned trial Judge in finding that the Judicial Service Commission did not commit an illegality stated as follows: a w ".... there is no provision in the Judicial Service Commission Act or the regulations which set out offences that a judicial officer commit or acts which constitute an offence. The act lives it to the discretion of the supervising officer to design offences that are committed by judicial officers. Further, I find that the administrative system put in place by the Judiciary of matters being allocated to Magistrates by the Principal Resident Magistrate is for purposes of smooth and transparent operation of the Courts. I find that this system having been put in place and communicated to the Magistrates had to be adhered to. There is also nothing in the Act or Regulations to prevent a supervising officer or indeed the Commission adjudicating that a failure to comply J9 with the system would result in disciplinary action, as was the case in this matter." In support of the Appellant's argument in ground two, learned State Counsel cited the case of COUNCIL OF CIVIL SERVICE UNION v MINISTER OF CIVIL SERVICE where at pages 950 to 951 Lord Diplock stated as follows: "...... by "illegality7 as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges by whom the judicial power of the state is exercisable." Learned State Counsel relied on his arguments in ground one and he submitted that the Appellant's dismissal was not only "irrational7 and "Wednesbury unreasonable7 but also "illegal.7 He argued that there was no statutory provision to the effect that a Magistrate commits an act of misconduct warranting dismissal if he heard and determined a matter which had not been allocated to him. It was submitted that he was protected by sections 19 and 55 of Cap. 28 already quoted in ground one. In ground three, learned State Counsel referred to the judgment on Record in which the learned trial Judge stated as follows: J10 "I therefore, find that the Respondent did not breach the rules of natural justice and accordingly dismiss the application on the ground of 'procedural impropriety'." Mr. Zulu, SC relied on the case of COUNCIL OF CIVIL SERVICE UNION v MINISTER OF CIVIL SERVICE in which Lord Diplock at pages 950 to 951 stated as follows: "I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instruments by which its jurisdiction is conferred even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all." In the instant case, it was submitted that at page 58 of the Record of Appeal, the Acting Principal Resident Magistrate, charged the Appellant for handling a criminal case without allocation in the case of THE PEOPLE v HACHOOSE4. In the said letter to the Appellant, it was further stated that the practice of hearing unallocated cases had been discouraged and that a system had been put in place to counter the undesirable practice, which had been characterised by fraudulent activities...... Jll Learned State Counsel made further reference to the letter dated 22nd September, 2008 from the Secretary of the Judicial Service Commission to the Appellant. In the said letter he was informed that his appeal was considered and the Commission did not see any merit in all his grounds of appeal to warrant re-opening of the case. It was further stated that regard was made to his previous bad conduct and the Judicial Service Commission therefore resolved to sustain his dismissal (see page 64 of Record of Appeal). It was contended on behalf of the Appellant that in the disciplinary proceedings against the Appellant, the Judicial Service Commission was restricted to consider only the alleged offence of dealing with a criminal case which was not allocated to the Appellant by the Principal Resident Magistrate. It was argued that the Appellant should not have been dismissed on mere suspicions of conspiracy to pervert the course of justice nor on the strong complaints and insinuations from those concerned. It was further contended that since no details were furnished to the Appellant, he was not given an opportunity to defend himself against the alleged conspiracy between the DEC prosecutors and himself to afford the accused person an easy way out of the case by handling the matter J12 without allocation authority. It was contended that consideration of those matters amounted to "procedural impropriety/ It was further argued that the Judicial Service Commission was also not entitled to take into account the Appellant's alleged previous bad conduct as he was not given an opportunity to defend himself on those allegations. It was submitted that the issue of previous bad conduct was res judicata as it was determined by the courts of law and closed and should not have been resuscitated. It was submitted further that taking into account the Appellant's previous bad conduct was unfair and amounted to procedural impropriety. A plethora of cases were cited to demonstrate that the purpose of judicial review is to ensure that an individual is given fair treatment by the authority to which he has been subjected (see: (i) N YAM PALA SAFARIS (Z) LTD & OTHERS v ZAMBIA WILDLIFE AUTHORITY & OTHERS5 (ii) FREDERICK JACOB TITUS CHILUBA v ATTORNEY GENERAL6 (iii) SUPREME COURT PRACTICE, 1999 Edition, Volume 1) It was further submitted that in SABLE HAND ZAMBIA LTD v ZAMBIA REVENUE AUTHORITY7 this Court held inter a!ia\ J13 "3. The remedy of judicial review is concerned not with the merits of decisions, but with the decision making process. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected..... " It was learned State Counsel's submission that the Appellant was not dismissed because he handled a criminal case which he was not allocated by the Principal Resident Magistrate but because the Judiciary did not want him for the alleged previous bad conduct and that he was a bad egg in the Judiciary. In relation to ground four, it was submitted on behalf of the Appellant that the Secretary of the Judicial Service Commission informed the Appellant that at its 196th Meeting, the Commission considered the Appellant's appeal and did not see any merit in it to warrant re-opening of the case. It was the Appellant's contention through State Counsel that in that letter of 22nd September, 2008, it was not indicated that the membership of the Commission who sat at the 196th Meeting was different from the one that sat at the 195th Meeting on 7th May, 2008. It was further contended that if it was the same membership of the Commission which sat at both Meetings, the Appellant could not have been given a fair hearing by the same persons who dismissed him in the first place. J14 In ground five, learned State Counsel submitted that he dealt with this ground of appeal in ground one. He submitted further that in the Appellant's charge letter on Record, the Acting Principal Resident Magistrate stated inter alia\ "You received the indictment straight from the prosecutors and proceeded to handle the case against a background where I have discouraged such conduct and even introduced individual allocation registers for all Magistrates at the station to ensure allocated case records are picked from my office and availed to Magistrates." It was contended that since the system of allocating cases to Magistrates was introduced for administrative purposes, it had no legal backing as there were no statutory regulations governing it making it an offence to deal with a case that had not been allocated. It was argued that it was not correct at law to state that a Magistrate who tries a case that has not been allocated to him commits misconduct, as such a suggestion flies in the face of the law. The Respondent's heads of argument were filed in court on 18th June, 2014 and the Senior State Advocate relied on them. He started by stating the basic principles which accord an applicant the remedy of judicial J15 review as they were aptly restated by this Court in the N YAM PALA SAFARIS (Z) LTD case. He submitted that in the case of COUNCIL OF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR CIVIL SERVICE8, the House of Lords stated the principles under the heads, namely: illegality, irrationality and procedural impropriety. He submitted further that in the case of Rv INDEPENDENT TELEVISION COMMISSION, Exp TSW BROADCASTING LTD9, it was stated that judicial review does not issue merely to vitiate an error, but judicial review will lie to vitiate the decision making process when one of the aforesaid principles and/or grounds are established. In response to ground one, it was submitted that the learned trial Judge was on firm ground when he determined that the Appellant had failed to establish facts to support his assertion that his dismissal was done in bad faith. The Appellant had further asserted that being a Magistrate, he should not have been dismissed without giving him a chance to be heard thus unreasonable in the "Wednesbury" sense. It was the Respondent's contention that in the absence of facts advancing unreasonableness on the part of the Respondent, the Appellant J16 had failed to prove that the Respondent's decision was so unreasonable in its defiance of logic that it verges on absurdity. It was argued that it was not sufficient for the Appellant to merely rely on the fact that, as a Magistrate, he ought to have been given an opportunity to be heard without having stated the facts which made the decision unreasonable. It was submitted that this ground must fail. In response to ground two, it was the Respondent's contention that the learned trial Judge was on firm ground when he found that the Appellant had failed to establish illegality by merely relying on the meaning as propounded by Lord Diplock in the case of COUNCIL OF CIVIL SERVICE UNIONS & OTHERS v MINISTER OF STATE FOR CIVIL SERVICE. It was submitted that the Appellant under this head of illegality had argued that Regulation 34 of the Judicial Service Commission Regulations ("Regulations") require the Chief Administrator to initially suspend a judicial officer when disciplinary proceedings are commenced against him. It had further been argued that the Judicial Service Commission in effecting the Appellant's dismissal, did not apply that Regulation. The said Regulation states in part as follows: J17 "34. The Chief Administrator may suspend a judicial officer from exercising his powers and functions of the officer's office if satisfied that: (c) Disciplinary proceedings for the dismissal of the judicial officer have been or and about to be instituted against the officer." It was the Respondent's contention that the learned trial Judge rightly held that the crucial word in the said Regulation was "MAY." It was further • contended that the learned trial Judge correctly interpreted the implications of Regulation 34 that it was not mandatory for the Chief Administrator to suspend an officer whilst disciplinary proceedings against him were pending. It was, therefore, submitted on behalf of the Respondent that the Appellant had lamentably failed to establish illegality and that this ground of appeal should also fail. The Respondent argued grounds three and four together as one ground. It was the Appellant's contention under grounds three and four that he was not given an opportunity to exculpate himself before the Commission as he was not called to appear before it to give his version of events. He had also contended that that was a breach of the rules of natural justice. J18 In response to grounds three and four, it was the Respondent's contention that contrary to the Appellant's assertion, the Appellant was charged via letter marked exhibit "ELM 1" by the Principal Resident Magistrate (PRM). It was further contended that the Appellant had exculpated himself through his letter marked exhibit "ELM 2" wherein he had not expressly denied the allegations levelled against him but had shifted the blame to the prosecutor from the Drug Enforcement Commission (DEC). It was submitted that upon the Principal Resident Magistrate's receipt of the Appellant's exculpatory letter and being dissatisfied with the explanation therein, responded by letter marked exhibit "ELM 3" and informed the Appellant that his case was being referred to the Registrar for further action. It was further submitted that the Appellant by a letter dated 2nd June, 2008 appealed against his dismissal to the Commission. From the foregoing, it was contended that the learned trial Judge was on firm ground when he held that the Appellant was properly heard on all charges levelled against him as stated in the letter of 22nd September, 2008. J19 It was further contended that the learned trial Judge did not misdirect himself when he found that it was not necessary for a party to appear physically before a Commission if his documentary evidence sufficiently explained his position, especially as was the case in this matter and he did not deny the allegations. It was submitted that the rules of natural justice were not breached as alleged by the Appellant and that, therefore, grounds three and four should fail. In ground five, the learned Senior State Advocate submitted that it was the Appellant's contention that he was charged with an offence which was not prescribed by statute and/or written code of conduct and that the charge and/or penalty meted out to him was too harsh especially since the said charge was not prescribed by statute. It was further contended on behalf of the respondent that it could be noted from the Appellant's exculpatory letter of 23rd January, 2008 exhibited as "ELM 2" that he lamentably failed to challenge the procedure put in place for allocation of matters to Magistrates. Mr. Imasiku argued that the Appellant equally failed to challenge the fact that an allocation register showed which matters had been assigned to him. J20 It was the Respondent's further contention through Counsel that the learned trial Judge was on firm ground when he accepted the proposition by one Edward Luputa Musona that the Judiciary had established administrative procedures where cases are allocated to Magistrates by the Supervising Magistrate. He submitted that the 195th and 196th Meetings of the Commission demonstrated that there was an established administrative practice of allocating matters which the Appellant had failed to strictly adhere to. In conclusion, the learned Senior State Advocate submitted that the learned trial Judge did not err both in law and fact when he held that the Appellant had failed to cite grounds upon which he could rely on to invoke the provisions of Order 53 of the Rules of the Supreme Court. He submitted that consequently, the Appellant was not entitled to any of the remedies sought as there was no illegality or procedural impropriety on the Respondent's part in its decision making process. It was the Respondent's prayer that this appeal be dismissed in its entirety with costs to the Respondent. J21 We have carefully considered the evidence on record, the grounds of appeal, the arguments by both parties, the authorities cited and the judgment appealed against. Only five grounds of appeal were filed. Five grounds of appeal were advanced. We will consider the appeal ground by ground except for grounds three and four which will be considered together as they relate to similar issues. In considering ground one, we perused the Record of Appeal where the learned trial Judge stated that Counsel for the Appellant Miss Syulikwa had confused the various grounds for judicial review in her submissions and he gave examples as follows: "For instance, she cannot as she did at page 6 of her submission contend that '....... it is totally unreasonable to dismiss a Magistrate without giving him a chance to be heard. Further, it is irrational to hear one side of the story........ " The learned trial Judge stated that from the citation, the alleged failure to give the Appellant an opportunity to be heard fell under the ground of "procedural impropriety." He stated further that failure to hear a party could not therefore be termed "unreasonable" or "irrational" as Counsel had submitted. Thereafter, he proceeded and cited the case of COUNCIL OF CIVIL SERVICE UNION & OTHERS v MINISTER FOR J22 CIVIL SERVICE in which the term "irrational" was defined as also being "Wednesbury unreasonable." He stated further that it was in that respect that the phrase applies to: "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." In considering ground one on "Wednesbury unreasonableness," the trial Judge stated that the Appellant had not alleged that, or relied on any facts to show that the decision of the Judicial Service Commission in dismissing the Appellant was 'Wednesbury unreasonable7 as aforestated to fit in the phrase quoted. He noted that the Appellant had used the test of bad faith which was not articulated and alleged failure to be given an opportunity to be heard. As a consequence of applying the wrong tests, that ground for judicial review failed. We had an opportunity to examine the Appellant's submissions contained in the Record of Appeal. We also found that the submissions or arguments in support of that ground alleging "Wednesbury unreasonableness" on the part of the Judicial Service Commission in its dismissal of the Appellant was not well articulated and lacked facts to J23 support the argument advanced. We are also of the considered view that Counsel for the Appellant (in the Court below) mixed up the grounds and tests to be applied. We find that the learned trial Judge was on firm ground to have held as he did. This ground, therefore, lacks merit and we dismiss it. With regard to ground two, we noted that the learned trial Judge had observed in the judgment on record that even though the Appellant raised "illegality" as a ground for judicial review, he did not elaborate on it. We also had an opportunity to examine the said ground on Record and we confirmed that what was the Appellant's position was that he would rely on the meaning of illegality as propounded by Lord Diplock in COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v MINISTER FOR THE CIVIL SERVICE. We further examined the Appellant's (Applicant's) submissions in the Record of Appeal. We observed from the same Record that Counsel for Appellant just reproduced excerpts from the White Book to demonstrate what was stated by Lord Diplock in the cited case, thereby confirming what was contended in the Respondent's submissions. J24 We, however, considered the Appellant's submissions in respect of Regulation 34 which was earlier recast. Upon examination of the said provision we accept the argument advanced on behalf of the Respondent that the use of the word "MAY" entailed that it was not mandatory for the Chief Administrator to suspend an officer whilst disciplinary proceedings against the officer were pending. We are also of the considered view that illegality was not established by the Appellant. We, accordingly, find that the Court below was on firm ground in finding as it did. This ground also lacks merit and we dismiss it. We turn to grounds three and four. The thrust of the Appellant's arguments was that he was not given an opportunity to exculpate himself before the Commission as he was not called to appear before it. Upon perusal of Record of Appeal we found the Appellant's exculpatory letter dated 23rd January, 2008 ("ELM 2") and his letter dated 2nd June, 2008 that was also exhibited as "SN2." We further considered the contents of the letter dated 22nd September, 2008 exhibited as "ELM 6" which in paragraph 2 confirmed that the Appellant's appeal was considered at the Commission's 196th Meeting. J25 From the foregoing and based on our consideration of the arguments advanced by both parties, we are satisfied that the Appellant was given an opportunity to exculpate himself. His letters were considered by the Commission as has been demonstrated in the exhibits on record. We are, therefore, of the considered view that it was not necessary for the Appellant to be present at the hearings since his documentary evidence had been taken into account. We, accordingly, find that the Court below was on firm ground for finding that there was no breach of the rules of natural justice and by dismissing the ground of procedural impropriety. With regard to ground five, we considered the arguments advanced and the fact that the Appellant in his exculpatory letter of 23rd January, 2008 admitted the allegations levelled against him as was submitted by the Respondent. We are, therefore, of the considered view that the issues raised later in his letter of appeal, "SN 2" were an afterthought which would not have made much difference in view of his admission. We also found nothing wrong in the Commission referring to the Appellant's previous bad conduct and neither did we consider the same to be prejudicial to him. The case was heard and considered on the