Stewards Company (z) Ltd v Apollo Enterprises Ltd and Anor (Appeal 48 of 2000) [2001] ZMSC 111 (7 June 2001)

IN THE SUPREME COURT FOR ZAMBIA Appeal No. 48 of 2000 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: STEWARDS COMPANY (Z) LIMITED Appellant AND APOLLO ENTERPRISES LIMITED 1st Respondent ATTORNEY GENERAL 2nd Respondent CORAM: Ngulube CJ, Chaila and Lewanika JJs On 6th March and 7th June 2001 For the appellant - W. B. Nyirenda, of Ezugha Musonda and Company. For the 1st respondent - A. J. Shonga, of Shamwana and Company. For the 2nd respondent - No appearance. JUDGMENT Ngulube CJ, delivered the Judgment of the Court. The appellant commenced two actions in the High Court: One began by writ was against the first respondent asking for a declaration that the appellant was entitled to occupation and possession of ten hectares of plot 56 Musenga, Chingola, and an injunction to restrain the first respondent from entering upon and clearing the said Plot 56. The second was an action for judicial review against the second respondent on behalf of the Commissioner of Lands to quash the latter’s decision to allocate the entire Plot 56 to the first respondent without subdividing it and giving the appellant the required ten hectares. The two actions were consolidated and trial was without pleadings. After hearing the evidence and considering the documents, the learned trial judge dismissed the appellant’s claims, hence this appeal. The brief facts were that the appellants were the alter ego of a church mission, the Musenga Mission of the Christian Missions in Many Lands. They occupied land adjacent to Plot 56 and needed more land on which to construct for the benefit of the local community a clinic, a church, staff housing and a skills training center. The first respondents also occupied another plot adjoining Plot 56 and they had already wrongfully encroached upon Plot 56 to the extent of slightly over nineteen hectares. They too needed more land in order to expand their activities. Meanwhile, Plot or Lot Number 56 Musenga was leased by the State to Messrs Forrest and Maize Enterprises Ltd for a term of fourteen years from 1st May 1981. That company failed to develop the land and abandoned it so that by the time an inspection was carried out in May 1989, the only part which was developed was that encroached upon by the first respondents. The appellants and the first respondents separately indicated their interests in this abandoned land to the Chingoia District Council. It is common cause that the local authorities act as agents for the Commissioner of Lands. Thus, the Chingoia District Council considered the matter and recommended to the Commissioner that he re-enter Lot 56 and that it be subdivided so that the appellant and the first respondent could each get the additional land they required. The Commissioner of Lands duly re-entered but he did not carry out the recommended subdivision; instead he gave the whole of lot 56 to the first respondent. Attempts were made by the parties to reach an ex curia accommodation and to embark upon a mutually agreed subdivision and reallocation of the land. Somewhere along the line, the attempts aborted and the first respondent no longer wished to share. After the trial, the learned trial judge dismissed the appellant’s claims. He accepted the evidence of the Commissioner of Lands who said that, after taking account of the recommendations from the Council and after considering the first respondent’s capacity to carry out developments (including those proposed to be carried out for the benefit of the local community), he decided to exercise his discretion by giving the whole of Lot 56 to the first respondent. The judge was satisfied that the Council as an agent could not dictate to the Commissioner of Lands what he must do and that the Commissioner acted within his legal powers in allocating Lot 56 to the first respondent. Judicial review had been sought on the basis that there was procedural impropriety as well as irrationality in the decision to grant the whole land to one of the parties. We received detailed and learned written skeleton arguments in the heads of argument filed as well as detailed oral submissions and arguments. Mr. Nyirenda pointed out that the Council’s recommendation was that the first respondent should be given the 19.1 ha portion already encroached upon by them while part of the land should be given to the Musenga Mission. He also pointed out that the parties might have resolved the dispute amicably, as some documents on record showed, if only a falling out had not occurred between the two gentlemen at the head of each institution. He asks that this court declare as irrational the Commissioner’s decision to ignore the Council’s recommendation so that the certificate of title issued to the first respondent should be recalled and the land subdivided to accommodate both parties. On behalf of the first respondent, Mr. Shonga argued that there was neither irrationality nor procedural impropriety in what the Commissioner did. The first respondent did not only apply for 19.1 ha, they also required additional land for a sawmill, plant and staff housing. Mr. Shonga submitted that the Commissioner had a discretion to agree or not to agree with the recommendation from the council and that it was not in excess of such discretion to decide not to subdivide the land and to give the whole of it to the first respondent. We have given anxious consideration to the issues in this appeal. We also wish to affirm as we did in DERRICK CHITALA -v- ATTORNEY-GENERAL (1995 - 97) ZR 91 that indeed judicial review can be sought on grounds of inter alia irrationality and procedural impropriety. There was clearly no evidence of procedural impropriety before the learned trial judge. As to irrationality, we reaffirm that this normally refers to decisions which are perverse and we use the word in its legal rather than its pejorative sense: See ASSOCIATED PROVINCIAL PICTURE HOUSES LTD -v- WEDNESBURY CORPORATION (1948) 1 KB 223. The question cannot be whether the decision produced an unfair or unjust result or not but whether it was one which was legally perverse. As Mr. Shonga correctly argued, the question ultimately was whether the Commissioner can be faulted in the manner in which he exercised the discretion vested in him and whether he had exceeded what he was empowered to do. The appellant’s approach, if acceded to, would require the Commissionef'to always carry out the recommendations of the Councils. This cannot be correct. The Commissioner should only be criticized and if necessary his decision quashed when it can be shown that his not adhering to a recommendation was prompted or actuated by motives or considerations which can not be defended and which are in themselves inherently improper, arbitrary or capricious. This was not shown to have been the case here. We repeat the words of Lord Diplock in COUNCIL OF CIVIL SERVICE UNIONS & OTHERS -v- MINISTER FOR CIVIL SERVICE (1984)3 ALL ER 935 at 951 when he said - “By *irrationality ’ I mean what can by now be succinctly referred to as *Wednesbury unreasonableness’................... It 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 truth, there is no good reason to interfere with the judgment below. The appeal is CHIEF JUSTICE D. M. Lewanika SUPREME COURT JUDGE