Sinyangwe v The Attorney General (Appeal no. 31 of 1990) [1991] ZMSC 74 (16 July 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 31 of 1990 HOLDEN AT LUSAKA — (Criminal jurisdiction) STEPHEN ZOMBE SINYANGWE Appellant -v- ■ THE ATTORNEY-GENERAL Respondent CORAM: Ngulube, D. C. J., Sakaia and Chai la, JJ. S. On 14th May, and 16th July, 1991 For the appellant: A. M>Kasonde, of Kasonde and Company For the respondent: J. M. MWanachongo, Principal State Advocate \ JUDGMENT _______________________________________________ Ngulube, D. C. J. delivered the judgment of the court ✓ Case referred to: 1) Bradlaugh -v- Gossett (1884) 12 QB D. 271 At the hearing of this case, we dismissed the appeal and made no order as to costs. We said then that our reasons will be given later which we now do. The appellant appealed to this court against the ruling of a judge of the High Court who dismissed his application for judicial review when the respondent objected that the whole ; application would be an academic exercise. As result of a select \ committee of the National Assembly requesting him to attend .before them to give evidence and to produce documents, and as a consequence of his reluctance to oblige and their persistence and accusations that he was impeding their work, the appellant sought declarations, initially, that he could not be compelled to attend before the committ and that, as a civil servant who is required to be anonymous, he could not answer to Parliament for the performance of his duties. The National Assembly persisted in requiring his attendance and when he continued to resist they adjudged him to be in contempt and ordered his apprehension for the purpose of bringing him before the bar of the house. He was reprimanded by the house after police officers had 2/..........picked - picked him up as he was about to go into court for his case. Parliament had also written to his ministry directing that he be punished by suspension. In view of the foregoing, the appellant enlarged his claims to include declarations that he was not in contempt of Parliament that the National Assembly could not direct his Ministry to take disciplinary action against him; and that the serjeant-at-Arms could ; not be permitted to cause a litigant to be taken from the floor of the court where he was about to attend to prosecute his case. The complaint relating to the disciplinary proceedings arose out of the fact that the appellant's Permanent Secretary did write a letter of suspension as directed by Parliament, but which was withdrawn two days later because the right procedure had not been followed. In its place, a charge was preferred and the appellant called upon to exculpate himself. In prosecuting the appeal, Mr. Kasonde contended in his submissior that neither the action nor the appeal were academic because it was necessary for the court to pronounce upon the various issues raised. In the first place, Mr. Kasonde argued that it was necessary for the court to pronounce upon an alleged contempt of itself when a litigant was whisked away from its precincts Without regard to the sanctity of the courts. In answer to the learned trial judge’s determination that the court would not interfere with the exercise of-.parliamentary privileges, Mr. Kasonde argued that the court cannot decline jurisdictior when its own sanctity was challengeci and when the matters complained of took place outside Parliament. He relied on Bradlaugh -v- Gossett (1) which the learned trial judge found to be distinguishable. We agree that the Bradlaugh case cannot apply to this appeal. In that case there was a resolution of the house■to bar the plaintiff member of parliament from taking his oatlji and it was held that, this being a matter relating to the internal management of the procedure of the House of Commons, the court had no power to interfere. The short f * answer to the issue as presented by Mr. kasonde was provided by Mr. I i Mwanachongo who correctly submitted that there was nothing to suggest that the National Assembly on its officers had directed that its warrant of arrest must be executed in court. As a matter of fact, the contempt, if any, was not in the face of the court and the appellant ought to have made an application directed against the specific officers who chose to disrupt court proceedings by following the t • I. .' ; r i ■ ’ appellant to the court instead of executing the warrant elsewhere. This the appellant did not do but instead wished to complain against 3/... X the National - the National Assembly which could not conceivably have given a specific direction to disrupt court proceedings. In the second place, the appellant wanted the court to find that Parliament could not compel a subordinate civil servant to attend to give evidence and that the refusal to attend by such a civil servant, when his Permanent Secretary should have been the one to attend, cannot be a contempt of Parliament.; The issues raised on these points and the contentions on behalf of the appellant were in the teeth of specific provisions under the National Assembly (Powers and Privileges) Act, Cap. 17. For instance,| by virtue of Sections 10 and 14 of that Act, the appellant could be summoned and he was not exempt from giving evidence. Indeed, under $ Section 14(3) he could not refuse to give evidence and his refusal to L do so was a contempt under the terms of Section 19 of that Act. The truth of the matter is that the appellant sought judicial protection on wholly untenable grounds. Despite the way the action was presented, the real issue was whether or not the National Assembly had acted within its rights under the Act, in which case the Act precludes the court from entertaining any matter which was within the jurisdiction of the National Assembly. Since the answer must be in the affirmative, the learned trial judge cannot be faulted for reducing the issue to one of vires. The appellant did not show that the National Assembly acted outside its powers and we must uphold the learned trial judge's determination on the point. In the third place and finally, the appellant in effect sought to prevent disciplinary action against himself at the instance of his superior officers who were acting within their jurisdiction. The appellant sought to achieve this through a declaration that disciplinary proceedings could not be entertained at the dictation of the National Assembly. Since the incorrect suspension had been lifted before the hearing below, there was then no purpose to be served by proceeding, as the learned trial judge found. However, Mr. Kasonde argued that the new disciplinary process set in motion later, when the appellant was called upon to exculpate himself,still stemmed out of a directive ‘ from the National Assembly and should have been declared to be wrongful and incompetent. We do not think that this should be so. When another authority is exercising its rights and powers within the jurisdiction which it lawfully enjoys, it is not part of the function of the courts to interfere or to entertain a general appeal so as to - c substitute the court's own views of what should be done or to restrain 4/..........the lawful the lawful exercise of that other authority’s powers and rights. We agree entirely with Mr. Mwanachongo that it is not unlawful for an employer or a superior to take disciplinary action at the suggestion of a third party or on a report from a third party. The true issue in such circumstances is also one of vires. The role of the court would be limited to an enquiry whether that authority had the power and, if so, whether such power had been validly exercised. In this particular case, there is no dispute concerning the jurisdiction of the Permanent Secretary or another supervising authority to initiate proceedings against the appellant arising from the performance or non-performance of his duties as a subordinate civil servant. From the foregoing, it was clear that the learned trial judge could not be faulted it^ias for these reasons that we dismissed this appeal. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE E. L. Sakala SUPREME COURT JUDGE M. S. Chaila SUPREME COURT JUDGE