Attorney General v David Kabila Mwansa (Appeal No. 394/2023) [2024] ZMCA 97 (15 May 2024)

1/ IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) AppealNo.394/2023 BETWEEN: THE ATTORNEY-GENERAL ____ APPELLANT AND ~o , ! .' 1 5 M,\Y 202~ ,8. j DAVID KABILA MWANS ~~~ RESPONDENT Coram: Chashi, Sichinga and Sharpe-Phiri, JJA on 30th April, and 15th May, 2024 For the Appellant : Col. M. Namwaba, Senior State Advocate Lt. C. Ngolwe, State Advocate For the Respondent : Mr. M. Machwani of Messrs M. Machwani Legal Practitioners JUDGMENT Sichinga JA delivered the Judgment of the Court. Cases referred to: 1. Miyanda v the High Court for Zambia (1984) ZR 76 2. Jack Mbewe and Gezani Mwanza v The Attorney-General (2018/HP/ 1176) 3. Ludwig Sondashi v the Attorney-General SCZ Appeal No. 27 of 2000 4. Matilda Mutale v Emmanuel Munaile SCZ Judgment No. 14 of 2007 5. Arthur Nelson Ndhlovu and 2 Others v Al Shams Building Materials Company Limited and 2 others J1 6. The Attorney-General v E. B. Jones Machinists Limited SCZ Judgment No. 26 of 7. Kehar Singh v State (Delhi Admn) 1988 SCR Supl. (2) 24 8. Zambia National Holdings Limited and United National Independence Party v Attorney General (1994) ZR 115 9. Kenyon v Eastwood Miller (1888) 57 L. J. Q 455 10. Miller v Salomons (1853) 7 EX 475 11. Whitely v Chappell (1868-69) 12. Godfrey Miyanda v The Attorney-General (No.1) (1985) ZR 185 13. Attorney General v Achiume (1983) ZR 1 14. Mazoka and Others v Mwanawasa and Others (2005) ZR 158 15. Sussex Peerage Case (1844) 11 Cl & Fin 85 16. Seafood Court Estates Limited v Asher [1949] 2 KB 481 Legislation referred to: 1. The Defence Act Chapter 104 of the Laws of Zambia 2. The Firearms Act Chapter 110 of the Laws of Zambia 3. The Rules of the Supreme Court (White Book) 1999 edition 4. The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia Other works referred to: 1. The Concise Oxford Dictionary, 9th Edition, Oxford Press 2 . Black's dictionary of Law, Bryan A. Gamer- 9th Edition 2009 1.0 Introduction 1.1 This is an a ppeal against th e ruling of the High Court (Kombe, J,) dated 29 th September, 2023 pursuant to which the learned J2 Judge dismissed the State's application to dispose of the matter on a point of law. She held that Regulation 1 OA (2) (3) of the Defence (Officers) Regulations 1960 of the Defence Act1 does not ouster the jurisdiction of the High Court to h ear and determine the matter. 2.0 Background 2.1 In the introductory part of this judgment, we shall r efer to David Kabila Mwansa as the plaintiff (now the r espondent) and t h e Attorney-General as the defendant (now the app ellant). 2 .2 The salient facts, not in dispute are that the plaintiff, who h eld the rank Lieutenant, commenced this action by way of writ of summons following his dismissal from the Zambia Arm y on 9 th September, 2014. He was allegedly not subjected to any disciplinary hearing. 2.3 In his suit in the lower court, he seeks the following reliefs: (i) Reinstatement into active service due to unlawful and irregular dismissal; (ii) Damages for unlawful and irregular dismissal; (iii) Damages for loss of income; (iv) (v) Salary in arrears for the months of September 2014 to date; Costs; and (vi) Any other relief the court may deem fit. 2.4 In its defence, t h e State averred inter alia that the plaintiff was never charged with any offence as the Zambia Army J3 Commander exercised his discretionary powers provided under the Defence Act to dismiss the plaintiff. 2.5 On 18th February 2018, the State raised a preliminary issue seeking to dispose the case on a point of law that the court below had no jurisdiction. 2 .6 In h er ruling, subject of this appeal, Kombe J held that Regulation 1 0A (2) (3) of the Defence (Officers) Regulations 1960 of the Defe nce Act, Chapter 106 of the Laws of Zambia did not oust the lower court's jurisdiction to hear and determine this matter. 3.0 The Appeal 3.1 Dissatisfied with the ruling of the High Court, the State launched this appeal, raising one ground of appeal as follows: 1. The learned Judge below erred in law when she dismissed the Appellant's application and held that the Regulation 10A (2) (3) of the Defence (Officers) Regulations 1960 of the Defence Act of Zambia Chapter 106 of the Laws of Zambia does not oust the jurisdiction of the High Court to hear and determine this matter. 4.0 Appellant's heads of argument 4.1 At the hearing, Col. Namwaba, learned Senior State Advocate , in support of this appeal, relied on the appellant's heads of argument dated 11 th December, 2023. 4.2 Firstly , it was argued that the court 1n this jurisdiction has upheld the position that Regulation 1 0A ousts its jurisdiction J4 to determine any m atter arising from it. It was contended that an ouster clause in legislation is one that ousts the jurisdiction of the courts, and its effect is that an action subject to such a clause is final and cannot b e challenged legally . 4.3 On the d efinition of jurisdiction, we were referred to the case of Miyanda v the High Court for Zambia1 where the term 'jurisdiction ' was defined as: "The authority of a court to accept the presentation of a case before it and determine the issues raised by the case." 4.5 It was submitted that the court h as given its interpretation to Regulation 1 OA in the case of Jack Mbewe and Gezani Mwanza v The Attorney-General2 where the High Court held inter alia that: "In light of the authority, I am inclined, though with a heavy heart, to hold that Regulation 10A ousts this court's jurisdiction contrary to the plaintiffs counsel's assertion, Regulation 1 OA does not separate the decision of the President from that of the Army Commander. The President's decision is based on the recommendation of the Army Commander whether unlawful or wrongful and that decision cannot be questioned by a court." 4.6 It was argued that the High Court's jurisdiction to receive and determine a matter was not without limit, but it was instead limited by the various statutory provisions that prescribe it. JS 4. 7 It was submitted that the wording of Regulation 1 OA is devoid of uncertainty as it is intended to prevent the President's decision from being questioned by any means whatsoever. In support of this submission, r eliance was placed on the case of Ludwig Sondashi v the Attorney-General3 where the Supreme Court in interpreting sections 26(2) and 27(3) of the Firearms Act2 which has similar wording to Regulation 1 OA (3) held that the former section was correctly interpreted by the High Court. That the decision of a Minister could not be challenged in any court proceedings. The Supreme Court held: "Where the legislature has decided that certain matters should be solely for the executive, the court has no role to play as such issues contain no legal issues to be resolved." 4.8 The statutory authority exercised by the President pursuant to Regulation 1 OA (3), it was submitted, gives rise to matters that are preserved for the determination of the Executive. 4. 9 As regards the lower court's determination that Regulation 1 OA (3) does not oust the High Court's jurisdiction from hearing this matter, we were referred to Black's Law Di.ctionary wherein the term 'proceedings' is defined as: "The regular and orderly progression of a lawsuit, including, all acts and events between the time of commencement and the entry of judgment." 4.10 With respect to Regulation 1 OA (3), it was submitted that there were no ambiguities in the provision. That the learned Judge J6 in the court below misdirected herself in law when she found that Regulation 1 OA fell short of the requisite standard merely because it did not expressly state that the decision of the President would not be questioned 1n any "court or proceedings. " In support of this submission we were referred to the case of Matilda Mutale v Emmanuel Munaile4 where the Supreme Court held as follows: "The fundamental rule of construction of Acts of Parliament is that they must be construed according to the words expressed in the Acts themselves. If the words of a statute are precise and unambiguous, then no more can be necessary than to expand on those words in the ordinary and natural sense." 4. 11 It was restated that the wording in Regulation 1 OA raises no ambiguity as far as it relates to the word 'proceedings.' That subsequent to that is the word 'whatsoever,' which by implication excludes any remedial mechanisms, be it administrative or judicial. 4.12 As regards the lower court's holding that an estoppel can be set against the ouster clause in Regulation 1 OA (3) when a decision resulting thereof is malafide or made contrary to the rules of natural justice, it was submitted that no estoppel can be set against the ouster clause notwithstanding the alleged procedural impropriety, miscarriage of justice or malafide occasioned thereof. In support of this submission reliance was placed on the cases of Arthur Nelson Ndhlovu and 2 Others v Al Shams Building Materials Company Limited and 2 J7 others5 and The Attorney-General v E . B. Jones Machinists Limited6 both to the effect that an estoppel cannot be set up against a statute. 4. 13 We were further referred to the case of Christopher Muwana v The Attorney-General7, where t h e Supreme Court declined to r einstate the commission of the appellant who had been dismissed pursuant to regulation lOA, stating that it lacked jurisdiction to do so. 4. 14 We were urged to set aside the ruling of the lower court and hold that Regulation 1 OA (3) is a valid ouster clause. 5.0 Respondents' heads of argument 5.1 In opposing the appeal, Mr. Machwani, learned counsel for the respondent relied on the respondent's heads of argument filed on 22 nd December, 2023. Counsel submitted that the trial court was on firm ground when it found in favour of the respondent. 5.2 It was argued that the respondent was not challenging the President's decision as enshrined in the Defence Act, but the procedure adopted which led or caused the President to dismiss the respondent from active military service. That the procedure was in conflict with the rules of natural justice because the respondent was not availed an opportunity to be heard. Hence, no recommendation was written and the entire process rendered irregular. J8 5.3 It was advanced that the trial court was on firm ground when it relied on Article 134 of the Constitution as amended by Act No. 2 of 2016. That, this provision gives the trial court original and unlimited jurisdiction to hear any matter including the matter before this court. In support of this submission, we were referred to the case of Zambia National Holdings Limited and United National Independence Party V Attorney General8 in which the Supreme Court addressed the extent to which the trial court's jurisdiction may be restricted by statute. 5.4 Counsel submitted that in the present case, the trial court, in exercising its jurisdiction, which it rightfully did and in considering the context in which the respondent commenced the action, which culminated into this appeal, interpreted Regulation 1 OA of the Defence (Officers) Regulations 1960 of the Defe nce Act supra as a whole. Therefore, the decision of the lower court cannot be faulted. 5. 5 Counsel proffered that ouster clauses were developed for the purpose of limiting judicial authority, albeit not unjustly. That trial court firmly addressed the ouster clause which is the subject of this appeal. It was advanced that the question for determination before the trial court required the court to ascertain the meaning to the words in Regulation 1 OA of the Defence Act, n a mely 'proceedings', whether its use includes the proceedings in civil courts. J9 5.6 It was submitted that the literal approach to statutory interpretation does not always achieve the obvious object and purpose of the statute. Reliance of this submission was placed on the cases of Kenyon v Eastwood9 , Miller v Salomons10 and Whitely v Chappell11 which show that the literal approach to statutory interpretation does not always achieve the object and purpose of the statute being construed. That it is this general recognition of the inadequacies of the simple literalism which has led modern judges to look elsewhere for guiding principle where more emphasis is now placed on the importance of interpreting a statute in the light of the purpose behind it and t h e intentions of Parliament as expressed in the Act. 5.7 It was put forward that in casu, the trial court firmly employed the purposive rule of interpretation to arrive at the decision. Further, the trial court broadened its scope in trying to give the true intentions of Parliament. That it considered the use of the word 'proceedings' in Regulation 1 OA of the Defence Act, if read in isolation could lead to ambiguities or absurdity. The trial court aptly a pplied the purposive rule of interpretation as well as considered the context the same word couched in other provisions of the Act and how it is expressed where the word refers to civil courts such as the matter subject of this appeal. 5.8 It was submitted that the trial court was on firm ground when it held that its jurisdiction cannot be ousted by the provisions of Regulation 1 OA in light of the requirement to observe the JlO principles of natural justice. That the trial court is vested with this authority by the Constitution which is the supreme law of the la nd to wh ich the Defence Act is subject. 5.9 Counsel r eiterated that the procedure that was adopted leading to the cancellation of the respondent's commissioning by the President had missing components of the principles of natural justice which ought to have been observed. In support of this submission, reliance was placed on the case of Brigadier General Godfrey Miyanda v Attorney General12• That the Supreme Court's decision was on the basis of unlawful acts which acts were contrary to the rules of natural justice. 5. 10 Reverting to the present case, it was advanced that there is evidence s uggesting that some components of the rules of natural justice had not been observed. Therefore, the court below was on firm ground to hold that the main matter is rightly before it. 5. 11 In conclusion counsel cited the case of Attorney General v Achiume13 , where it held as follows: "The appeal court will not reverse findings of fact made by a trial Judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence, based upon misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly can reasonably make." Jll 5 .1 2 On this note , counsel prayed that Regulation 10A of Defence (Officers) Regulation 1960 of the Defence Act cannot ouster the jurisdiction of the trial court under the circumstances. 6.0 Our considerations and decision 6.1 We have fervently considered this appeal together with the submissions by counsel for both parties. Whether the President has the statutory power to cancel and remove an officer from the defence forces without r ecourse to further proceedings is the central issue in this appeal. We are tasked to determine whether the lower court properly interpreted the law when it held that Regulation 10A (2) (3) of the Defence (Officers) Regulations 1960 of the Defence Act supra does not oust its jurisdiction to hear and determine this matter. 6.2 At the onset of our analysis is the appellant's application in the court b elow which was anchored on Order 14A of the Rules of the Supreme Court3. This provision is applied to determine questions which may bring a matter to an end, without the necessity of a trial. 6 .3 In the present case, the appellant asked the lower court to determine whether it has jurisdiction to hear and determine this matter pursuant to Regulation 10A of the Defence (Officers) Regulations 1960 of the Defence Act, the provision pursuant to which the r espondent was dismissed. 6.4 Regulation 10A (1) (2) (3) of the Defence (Officers) Regulations, 1960 provides as follows: J12 "lOA. (1) The President may, upon the recommendation of the Commander, cancel and order his removal from office if he is satisfied that such an officer is inefficient or unsuitable to remain in the Regular Force or that the conduct of such officer is likely to bring discredit upon the Defence Force. (2) Any person whose commission has been cancelled by the President under the provisions of subsection (1) shall forthwith be dismissed from the Defence Force. (3) any decision of the President to cancel this commission of an officer under subsection (1) shall be final and shall not be questioned in any proceedings whatsoever." 6.5 It is not in d ispu te, so far as t h e plead ings s h ow, that on 8 th September, 20 14 t h e Presid ent in voked the p rovision s of Regulation 1 OA of the Defence Act and d ismissed the r espond ent from t h e Defen ce Force by letter which r ead s in part as follows: "gth September, 2014 Lieutenant D K Mwansa (4393) Zambia Army Headquarters Arakan Barracks P. O. Box 31931 LUSAKA Dear Lieut enant Mwansa, Re: DISMISSAL FROM DEFENCE FORCE: YOURSELF J13 1. This is to inform you that you have been dismissed from the Defence Force (Zambia Army) under Regulation lOA of the Defence Act, Cap 106 of the Laws of Zambia. 2. I further wish to inform you that your commission has been cancelled forthwith. 3 . I wish to thank you most sincerely for the services you rendered to the Government of the Republic of Zambia during the three (3) years of service. 4. I wish you well in your future endeavours. Yours sincerely, M. C. Sata PRESIDENT REPUBLIC OF ZAMBIA" 6.6 At page R20 of her ruling, the learn ed J u dge in the court below argonised over the meaning of th e wor d 'proceedings' as u sed u nder sub-Regulation 3 of Regulation 1 OA. She stated as follows: "However, I have taken time to appreciate most of the provisions in the Act and the regulations touching on the word 'proceedings' so as to give effect to the greater purpose of the inst rument. This is because it is not clear to me and therefore I have been left in doubt whether the term proceedings as used under sub-Regulation 3 of Regulation 1 OA was meant to include judicial proceedings." 6 .7 The learn ed J udge, h avin g found amb iguity in the word 'proceedings,' advanced by con sidering a pleth ora of foreign cases, including but not limited to th e case of Kehar Singh v J14 State (Delhi Admin)1 4 . She found p ersuasive valu e 1n its holding that: "If the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature a rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to address. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute." 6.8 She then, as she stated thereafter, embarked on an exercise to examine every word, every section and every provision of the Defence A ct and the Regulations. By undertaking this approach, the learned Judge discarded the literal approach of interpretation. She took up the purposive approach of interpretation to ascertain the intent of the legislature. That is, whether R egulation 1 OA does oust the jurisdiction of the High Court to hear and determine this matter. 6.9 The Supreme Court has given guidance in a plethora of cases on interpretation of statutes. In the case of Mazoka and Others v Mwanawasa and Others15 the Supreme Court stated the fallowing: "It is trite law that the primary rule of interpretation is that words should be given their ordinary grammatical and natural meaning. It is only if there is ambiguity in the JlS natural meaning of the words and the intention of the legislature cannot be ascertained from the words used by the legislature that recourse can be had to the other principles of interpretation." 6.10 The Supreme Court went on to quote Tindal C. J. in the old English case of Sussex Peerage16 wh er e h e stated that: "If words of a statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense." 6. 11 And the case of Seafood Court Estates Limited v Asher10 where Lord Denning had the following to say: "A Judge must not alter that of which it (a statute) is woven, but he can and should iron out the creases." 6.12 In the Mazoka case the Suprem e Court considered, in similar manner as in casu, a question of jurisdiction. The statute at the core of the dispute was Article 41 (2) of the Constitution4 which provides as fallows: "41. ( 1) ... (2) Any question which may arise as to whether:- (a) any provision of this Constitution or any law relating to election of a President has been complied with; (b) any person has been validly elected as President under Article 34; shall be referred to and determined by the full bench of the Supreme Court." Jl6 6.13 The Court considered the words used in Article 41(2) of the Constitution, and found it was plain that it was clothed with the mandate to determine whether any person has been validly elected as President and/ or whether any provisions of the Constitution or any law relating to the election of a President had been complied with. The Court considered the meaning of the word 'determine' in the Concise Oxford Dictionary1 • It found that the meaning of the word 'determine,' in the context applied in Article 41 (2) called upon the Court to find out or establish precisely or decide whether a person was validly elected as President of Zambia and/ or w hether the applicable laws were followed. 6.14 In the present case, provisions of Regulation 1 OA of the Defence (Regular Forces) (Officers) Regulations, 1960, specifically sub regulations (2) and (3) state that: 1. Any officer whose commission has been canceled by the President shall be dismissed from the Defence Force. 2. The decision of the President to cancel an officer's commission under subsection ( 1) is final and cannot be questioned in any proceedings. 6.15 Following the Supreme Court's guidance in the Mazoka case, the Concise Oxford Dictionary, at page 95 1 defines 'proceeding' to mean: J17 "1. An action or piece of conduct. 2. An action at law; a lawsuit (legal proceedings). 3. A published report of discussions or a conference." 6.16 We have no uncertainty in our minds that the word "proceedings", in the circumstances it is used in Regulation 1 0A of the Defence (Regular Forces) (Officers) Regulations, 1960, excludes the court's jurisdiction to question/ or decide upon the President's dismissal of an officer. These provisions clearly limit the avenues for challenging the President's decision regarding the cancellation of an officer's commission within the Defence Force. 6.17 The learned Judge 1n the court below relied on the case of Miyanda v The Attorney-General supra. She found that the Supreme Court entertained the appeal notwithstanding the fact that the dismissal was done under Regulation 1 0A as in the present case. In that case, the appellant joined the Army as cadet officer during the currency of the Defence Act, 1955, which provided, inter alia, that officers could only be dismissed after they had been given an opportunity to be heard on any allegations against them. By the time the appellant received his commission, that Act had been repealed and re-enacted, the repealing law omitting the terms referred to. The appellant was later summarily dismissed and the issue arose whether or not he had an accrued or acquired right not to be dismissed without opportunity to exculpate himself. The Supreme Court proceeded to hear the case on the ground that the appellant J18 could not be subject to Regulation 1 0A (2) (3) of the Defence (Officers) Regulations 1960 as he had accrued the right to be heard under the Defence Act 1955. Therefore, that case is distinguished from the present one. 6.18 In the final analysis, it is plain that Regulation 1 0A states that the decision of the President in military matters, in the cancellation of an officer's commission, are final and cannot be questioned in any proceedings. This essentially means that the jurisdiction of the court is ousted in those specific circumstances. 7 .0 Conclusion 7.1 For the above reasons, we allow the appeal. We set aside the ruling by the High Court and dismiss the proceedings in the lower court. 7 .2 Costs to the appellant, limited t to be taxed in default of agree en J. Chashi COURT OF APPEAL JUDGE D. Ip,Y . Sichin9i , SC ~ ~ --,~ rpe-Phiri COURT OF APPE L JUDGE COURT OF APPEAL JUDGE J19