Attorney General v Mutembo Nchito (Appeal 157 of 2015) [2016] ZMSC 19 (10 February 2016)

PDF Compressor Pro • IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: THE ATTORNEY-GENERAL AND MUTEMBO NCHITO Selected Judgment NO.1 Of 2016 APPEAL NO.157/2015 APPELLANT RESPONDENT CORAM: MAMBILIMA, CJ, MWANAMWAMBWA, DCJ, CHIBOMBA, MUYOVWE AND HAMAUNDU, JJS; On the 3d day of November, 2015 and 10th February, 2015. For the Appellant: For the Respondent: Mr. L. KALALUKA, SC, Attoney-General; A. Mwansa, SC, Solicitor-General, Hara, General's Chambers. In person. Advocate; Principal State Mr. and Mr. C. Attorney- JUDGMENT MAMBILIMA,CJ, delivered the Judgment of the Court. CASES REFERRED TO- 1. WYNTER M. KABIMBA V. THE ATTORNEY-GENERAL AND LUSAKA ZR 152; 2. ATTORNEY-GENERAL V. NIGEL KALONDE MUTUNA AND 2 OTHERS CITY COUNCIL, (1995-1997) APPEAL NO. 008 OF 2012 (UNREPORTED); 3. SENTOR MOTORS LIMITED AND 3 OTHERS (1996) SCZ JUDGMENT NO.9 OF 1996; 4. COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS V. MINISTER FOR THE CIVIL SERVICE (1985) AC 370; 5. WILLUM HARRINGTON V. DORA SILIYA AND ATTORNEY GENERAL SCZ JUDGMENT NO. 14 OF 2011; 6. C AND S INVESTMENTS LIMITED, ACE CAR HIRE LIMITED, SUNDAY .... MALUBA V. THE ATTORNEY-GENERAL (2004) ZR 216; J1 PDF Compressor Pro 7. DERRICK CHITALA (SECRETARY OF THE ZAMBIA DEMOCRATIC CONGRESS) V. ATTORNEY-GENERAL (1995-1997) ZR 91; 8. HALIFAX REGIONAL MUNICIPALITY, A BODY CORPORATE DULY INCORPORATED PURSUANT TO THE LAWS NOVA SCOTIA (APPELLANT) AND NOVA SCOTIA HUMAN RIGHTS COMMISSION, LUCIEN COMEAU, LYNN CONNORS AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA (RESPONDENTS) AND CANADIANHUMAN RIGHTS COMMISSION (INTERVENER), 2012 SCC 10; 9. CITY OF TORONTO V. THE DREAM TEAM, 2012 ONSC 3904 (CANLII); 10. MRAK V CANADA (MINISTER OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT) (2007) F. C. 909; AND 11. AUSTRALIAN BROADCASTING TRIBUNAL V. BOND ("BOND MEDIA CASE") (1990) HCA 33; (1990) 170 CLR 321 (26 JULY, 1990). LEGISLATION REFERED TO- (i) (ii) (iii) (iv) CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA; RULES OF THE SUPREME COURT (WHITE BOOK), 1999; STATE PROCEEDINGS ACT, CHAPTER 71 OF THE LAWS OF ZAMBIA; AND INQUIRIES ACT, CHAPTER 41 OF THE LAWS OF ZAMBIA. OTHER WORKS REFERRED TO- (a) CONCISE OXFORD DICTIONARY, EIGHTH EDITION, 1990, PAGE 285; (b) BLACK'S LAW DICTIONARY, SIXTH EDITION, WEST PUBLISHING COMPANY, 1990, PAGE 383; (e) GEORGE WAGGOTT, 'JUDICIAL REVIEW OF HUMAN RIGHTS CASES - RECENT KEY DECISIONS', OBA 2013 ANNUAL HUMAN RIGHTS UPDATE; AND (d) CAROLYN BRANDOW, "JUDICIAL REVIEW OF TRIBUNAL DECISIONS", DECEMBER, 2009. This is an appeal from the Ruling of the High Court delivered on 15th July, 2015. The facts of this case are common cause and J2 PDF Compressor Pro , substantially not in dispute. The c.ackground to this matter is that on 10th March, 2015, His Excellency the President of the Republic of Zambia, l'v:r. Edgar C. LUNGU, established a Tribunal pursuant to Article 5812) and (3) of the CONSTITUTION OF ZAMBIAli ), in force at the tirr:e, to investigate alleg3.tions of misconduct against the Respondent. The Tribunal consis:s of the. Honourable Mr. Justice Annel M. SILUNGWE,Chairpers.:m; Honourable Mr. Justice Mathew M. S. W. l\-GULUBE,Member; and Honourable Mr. Justice Ernest L. SAKALA,Member. The Tribunal commenced its sittings on 1st April, 2015. At that inaugural Sitting, the Responden: raised three preliminary issues, namely- 1. "that the terms of Reference are incompetent; 2. that the hearing of the Tribunal should not be in camera; and 3. that two of the Members of the Tribunal must recuse themselves from sitting on the Tribunal on the grounds of bias." In its Ruling, delivered on 19:h May, 2015, the Tribunal found no merit in all the above preliminary issues and accordingly dismissed them. J3 PDF Compressor Pro On 26th May, 2015, the Respondent applied for leave to commence Judicial Review proceedings. The decisions in respect of which he sought relief were that:- 1. "the decision of the Tribunal set up to investigate the Applicant (hereinafter called 'the Tribunal') that Justices Ngulube and Sakala should not recuse themselves in spite of clearly established bias, both apparent and actual, on their parts; 2. the decision of the Tribunal that its sittings be held in camera in spite of the highly public genesis of this matter and the public and contumelious abuse the Applicant has suffered at the hands of his accusers including being arrested on a warrant issued by a Court that had no jurisdiction over him; 3. the decision of the Tribunal that the terms of reference against the Applicant need not be drafted so as to conform to the stipulations in the Constitution; that 4. the decision of the Tribunal can add charges after the President, as appointing the Tribunal has been set up authority, without recourse to the Tribunal and the Applicant thereby creating if he so wishes, The President can keep adding the impression that perpetuity, Tribunal charges notwithstanding that the Applicant remains on suspension during this period; thereby create and in a 5. the decision by the Tribunal to hold sittings and even make rulings there being procedure set up for such sittings by the without appointing authority; 6. the decision of the Tribunal to commence sittings to inquire into in the High Court and and that are the subject of appeal Number HPA/08/2015 Cause Court in matters Supreme SCZ/9/50/2015;and 7. the decision of the Tribunal communicated to the Applicant on 16th in camera which decision was made without March, 2015, affording the Applicant an opportunity to be heard. to sit J4 PDF Compressor Pro The ~espondent sought, among other reliefs, certiorari to remove into the High Court for the purpose of quashing the Tribunal's decisions listed above. He also sought for prohibition to restrain tl:e Tribunal from otherwise treating him in a manner that was illegal, procedurally improper and irrational. He further asked the lower Court to grant him damages for misfeasance in public office. He prayed that if leave to apply for judicial review was granted; the Court should give a direction that the leave would operate as a stay of the decisions of the Tribunal. On 26th May, 2015, the lower Court granted the Respondent leave to apply for judicial review. On 8th June, 2015, the Appellant filed summons to discharge the said leave. The application to discharge the leave was made pursuant to Order 53/14/4 of the RULES OF THE SUPREME COURT(i1), on the following grounds: 1. "investigative tribunals are not amenable to judicial review; 2. the Application for judicial review has no prospects of success; 3. staying the Republican President's decision to establish the Tribunal and suspending the DPP from the performance of duties as such flies in the face of section 16 of the State Proceedings Act, Chapter 71 of the Laws of Zambia, that prohibits grant of injunctions against the State." J5 PDF Compressor Pro After considering the pleadings and the arguments by Counsel, the learned review Judge stated that the contention by the Appellant that a stay of execution granted under judicial review flies in the teeth of :he provisions of the STATE PROCEEDINGS ACT(iii),was misconceived. He based his decision on, among other authorities, this Court's judgment in the case of WYNTER M. KABIMBA V. THE ATTORNEY-GENERAL AND LUSAKA CITY COUNCIL(I). In that case, delivering the judgment of this Court, Gardner, Acting C.,], as he was then, stated the following: "I respectfully agree that following these arguments, applications for judicial review are not civil proceedings within the meaning of the State Proceedings Act. 1 further agree that a stay in these circumstances is not an injunction. 1 am aware that, regrettably, personalities are involved in this case, but that does not alter the fact the proceedings are an enquiry into a discretionary ministerial decision, not a civil proceeding." that The learned review Judge disagreed with the Appellant on its argument that proceeding with the application for judicial review would either curtail the Tribunal's investigative process or purport to interpret Article 58 of the CONSTITUTION(i). He expressed the view that no administrative tribunal in Zambia occupies a hallowed throne, im..llune to interrogation by the process of judicial review. J6 PDF Compressor Pro He stated that the process of judicial reView IS not designed to curtail the work of tribunals which he said are an essential requisite of the administrative pulse of any government. He pointed out that the process is merely designed to ensure that individuals are given fair treatment by the authorities to whom they have been subjected. According to him, ensuring. that authorities treat individuals fairly did not amount to curtailing the work of those authorities but merely ensured that the authorities conducted their work fairly. He added that the Court would only be curtailing the investigative process of this particular Tribunal if it went beyond examining the decision making process and delved into the merits of its decisions. The lower Court went on to state that it understood that judicial review and other civil proceedings could not be employed to curtail criminal proceedings. It, however, said that this principle was not applicable to these proceedings because they are not criminal proceedings but administrative proceedings established for the purpose of determining whether a constitutional office bearer J7 PDF Compressor Pro should be removed from office. It concluded that the Tribunal was amenable to judicial review. The Court then proceeded to find that the Respondent had disclosed points fit for further investigation on a full inter partes basis. It, accordingly, dismissed the Appellant's application to discharge leave to apply for judicial review.. The Appellant has now appealed to this Court, against the said Ruling of the lower Court, advancing three grounds of appeal, namely- 1. "that the Court below erred in law and fact when it ruled that the mere act of subjecting tribunals to the process of judicial review would not investigative processes; in curtailing its processes or result 2. that the Court below misdirected itself in law and fact when it held the Tribunal would not that amount to interpreting Article 58 of the Constitution; and judicial review proceedings against 3. that the Court below erred in law and in fact when it held that an investigative review proceedings can lie against judicial Tribunal." In sl:pport of these grounds of appeal, the learned Attorney General a.,d the learned Solicitor General filed written heads of argument which they augmented with oral submissions before us. In support of the first ground of appeal, the State faulted the lower Court, for having found that the mere act of subjecting the J8 PDF Compressor Pro Tribunal to the process of judicial reVIew would not result In curtailing its investigative processes. They argued that the stay of the proceedings of the Tribunal is in itself the first step in curtailing the Tribunal's investigative processes. They maintained that since the Tribunal is an investigative tribunal, it is not amenable to judicial review. For this argument, they referred us to this Court's decision in the case of ATTORNEY-GENERAL V. NIGEL KALONDE MUTUNA .l\. ND2 OTHERSl2 1 where this Court said that- "We furthermore agree with the Appellant that, as was held in the case of C and S Investments Limited, Ace Car Hire Limited, Sandy Maluba v. Attorney General, (No. 24 of 2004) since the tribunal processes are investigative in nature, judicial review cannot be used to curtail these investigative processes. It should also be noted that the President appoints a tribunal. ... Thus, the President must act on the advice of the Tribunal without discretion." On tne second ground of appeal, the State submitted that the learned review Judge misdirected himself in law and in fact when he held that judicial review proceedings against the Tribunal would not amount to interpreting Article 58 of the CONSTITUTIONI!I. They contended that the Court could not adjudicate on the reliefs sought by the Respondent without going to the root of that Article. To buttress their arguments, the State cited the case of SENTOR J9 PDF Compressor Pro MOTORS LIMITED AND 3 OTHERSI3 1 where this Court said "That it was the duty of the Court to adjudicate matters brought before it". Counsel went on to refer us to the case of COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS V. MINISTER FOR THE CIVIL SERVICE, 141 where the Court said that by illegality is meant that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. They submitted that since the law that regulates the decision making power of the Tribunal is Article 58 of the CONSTITUTION!i), the Court below would definitely have to delve into interpreting the provisions of that Article in order to determine whether there was illegality 0::1 the part of the Tribunal. Counsel again referred us to a portion of this Court's decision in the NIGEL KALONDE MUTUNA(2 ) case where we stated- "We hold the view that the provisions of Article 98 being very clear literal and unambiguous have to be interpretative method. The provisions of Article 98 being very clear nambiguous, no Court has any mandate to amend them and through in these provisions nor can we bring into interpretation of these provisions glosses and interpolations derived from the doctrine of case law. interpretation. We cannot imply anything interpreted using the no PDF Compressor Pro The learned Attorney-General and his legal team contended that the provisions of Article 98 of the CONSTITUTIONli) are similar to the provisions of Article 58 of the same CONSTITUTIONli). According to them, even the circumstances in this case are similar to the cin;umstances in the case of NIGEL KALONDE MUTINA(2) because they both involve constitutional office holders. It was the State's contention that the Court has no jurisdiction to interpret constitutional provisions because the same are outside the scope of judicial review. For this contention they referred us to the case of WILLIAM HARRINGTON V DORA SILIYA AND ATTORNEY GENERALIS), where we stated that- "the trial Judge erred when he proceeded to interpret Article 54(3) of the Constitution because it was outside the scope of judicial review. In so doing, he delved into the merits of the matters he substituted his opinion for that of the Tribunal." With regard to the third ground of appeal, the State submitted that the lower Court erred in law and in fact when it held that judicial review proceedings can lie against an investigative tribunal. They reiterated that the Court's holding was contrary to this Court's pronouncement in the NIGEL KALONDE MUTUNA(21 case, where we said that investigative tribunals are not subject to judicial review. J11 PDF Compressor Pro In their oral submissions before us, the State argued all the three grounds of appeal together. The learned Attorney General argued that Article 58 and Article 98 of the CONSTITUTION(1 ) are very similar. He stated that the State, therefore, intended to rely heavily on the case of NIGEL KALONDE MUTUNA(2) which was decided on the basis of Article 98 of the CONSTITUTION(1 ). He submitted that contrary to the contention by the Respondent, the holding by this Court, in the NIGEL KALONDE MUTUNA(2) case, on the availability of judicial review to decisions of investigative tribunals, was not obiter dicta. He argued that this Court arrived at the said holding after considering arguments advanced by both parties on the issue. He contended that where an issue is brought before the Court by one party and the other party advances arguments in opposition, a decision on that issue cannot be said to be obiter dicta. The learned Attorney-General went on to argue that the proceedings of the Tribunal had been curtailed because the Tribunal had been stayed. According to him, a stay has an effect of curtailing. He said that in the C AND S INVESTMENTS LIMITED, PDF Compressor Pro ACE CAR HIRE LIMITED, SUNDAY MALUBA V. THE ATTORNEY- GENERAL161case, this Court used the word 'arrest', and in the NIGEL KALONDE MUTUNA(2) case this Court used the word 'curtail'. He, therefore, submitted that the intention of this Court has been tDsay that investigative processes of a tribunal should not be disturbed. According to him, this is whether or not the word used is 'arrest', 'curtail' or 'stay'. The learned Attorney General argued that allowing every decision of the Tribunal to be amenable to judicial review would make the investigation by the Tribunal impossible. He said that this was because the Respondent would be at liberty to rush to Court and apply for judicial review whenever the tribunal makes a decision that is unfavourable to him. He contended that a party should only be allowed to challenge a decision of an administrative tribunal after the conclusion of the proceedings and rendering of the final decision. The learned Solicitor General supplemented the learned Attorney General's submissions. On the question of the procedure to be used by the Tribunal, he contended that Article 58 of the J13 PDF Compressor Pro CONSTITUTIONli) does not provide for any procedure that the Tribunal ought to follow. He submitted that it was a notorious fact that tribur_als created in this country have taken advantage of the procedure provided in the INQUIRIES ACT1iV), for procedure. He, therefore, contended that the Tribunal was in order when it set its own procedure. The learned Solicitor General went on to argue that the decision of the Tribunal was not subject to judicial review because, in his view, it was a final decision. He stated that the decision was on preliminary issues on housekeeping measures. According to him, since the Members of the Tribunal were appointed by the President, if any a:;:>plicationfor judicial review was to lie it should have been made against the President. In response, the Respondent filed written heads of argument which he augmented with oral submissions before us. He started by providing a detailed background to this case. He argued that Order 53 rule 14(4) of the RULES OF THE SUPREME COURT!ii), makes it clear that applications for the discharge of leave to commence judicial review proceedings are discouraged and should only be J14 PDF Compressor Pro made where the Respondent can show that the substantive application will clearly fail. He contended that the Appellant has not met this standard to warrant the discharge of leave in this case. He argued that the fact that the lower Court granted him leave to commence judicial review proceedings meant that his application is neither frivolous nor vexatious and that it was fit for further investigation at a full inter partes hearing. To buttress his contention, he referred us to Order 53/14/21 of the RULES OF THE SUPREME COURTlii ),which provides that- "Applications for leave are normally dealt with ex parte by a single Judge, in the first instance without a hearing .... The purpose of the requirement of leave is: (a)to eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter partes judicial review hearing; 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 investigation at a full inter partes hearing." With regard to the first ground of appeal, the Respondent argued that wha: he sought, by commencing judicial review proceedings, was not to curtail the Tribunal but to have the High Court ensure that the decisions the Tribunal reaches are legal, procedurally proper and rational. He contended that he was not J15 PDF Compressor Pro asking that the Tribunal should never sit but that when it sits, he should be afforded the full facility of legal, procedurally proper and rational decisions. To support the above arguments he relied on the case of NIGEL KALONDE MUTUNA(2) where this Court said that- "It is also worth mentioning that through the appointment of a tribunal, those Judges mentioned to be the subject of investigations are given a chance to be heard through the tribunal because it is an investigation not a prosecution. So there is compliance with the open justice principle.» The Responc.ent advanced the VIew that the Tribunal m dispute is subject to judicial review. To support this argument, he referred us to a portion of our judgment in the case of DERRICK CHITALA (SECRETARY OF THE ZAMBIA DEMOCRATIC CONGRESS) v. ATTORNEY-GENERALI7 1 where we stated that- "After all, since Ridge v. Baldwin, the distinction between judicial and administrative activities has been swept away and as a general inferior courts and proposition judicial review now lies against tribunals and against any persons or bodies which perform public duties or functions. There is, of course, no blanket immunity from judicial review even for the President.» On the argument by the Appellant that the NIGEL KALONDE MUTUNA(2) case, sets the principle that judicial review cannot be used to :::urtail proceedings of an investigative tribunal, the Respondent distinguished the facts of that case from the facts of PDF Compressor Pro this case. He argued that the Respondents in the NIGEL KALONDE MUTUNA(2: case at:empted to defeat the decision of the President on the basis, among others, that they had not been heard before the setting up of the Tribunal. He stated that whereas the judicial review pro:eedings in the NIGEL KALONDE MUTUNAl2 1 case sought to quash the President's decision, this judicial review is dealing with the decisions of the Tribunal. He submitted that in the NIGEL KALONDE MUTUNA(2) case, the Applicants went to Court to allege that the President had not given them the right to natural justice. That the Court then said that the right to natural justice would be granted at the Tribunal. He contended that, in his case, he is before this Court because, having gone to the Tribunal, the Tribunal did not hear him fairly. The Respondent went on to argue that the portion of the NIGEL KALONDE MUTUNA(2) case which has been relied upon by the Appellant was either obiter dicta or it has been taken by the Appellant out of context. According to him, the said portion did not relate to any of the questions that were before the Court for determina:ion. He said this point is further buttressed by the fact J17 PDF Compressor Pro that the case of C AND S INVESTMENTS LIMITED(6), which this Court relied on in the NIGEL KALONDE MUTUNA(2 ) case, dealt with a criminal investigation by the Drug Enforcement Commission and not an inquiry by a tribunal. He submitted that the normal progression of a criminal investigation is that it ends up in a Court of law whee the accused is given a chance to be heard. He argued that, conversely, once the Tribunal submits its recommendations to the President, there is no provision for him to be heard. The Respondent submitted that even assuming that the portion of the NIGEL KALONDE MUTUNAl2 1 case, relied on by the Appellant, was ratio decidendi, it does not proscribe the institution of judic:al review proceedings against tribunals like the one in the instant case. He contended that the word 'curtail', which was used in that case, does not mean that judicial review cannot lie against a tribunal. He referred us to the definition of 'curtail' in the CONCISE OXFORD DICTIONARyla) as follows: "1. Cut short; reduce; terminate esp. prematurely .... " He also referred us to BLACK'S LAW DICTIONARylb) which defines 'curtail' as "To cut off J18 PDF Compressor Pro the end or any part of; hence to shorten, abridge, diminish, lessen, or reduce .... " The Respondent went on to argue that, in the instant case, what has happened is merely that the decision of the Tribunal has been stayed and not curtailed. Coming to the second ground of appeal, the Respondent submitted that his judicial review application did not call upon the lower Court to interpret constitutional provisions but he merely moved the Court to look into the procedural fairness of the decisions arrived at by the Tribunal. He contended that in any case, this Court interpreted Article 98 of the CONSTITUTION!i) when it decided the NIGEL KALONDE MUTUNA(2) case. He submitted that the Appellant's contention that interpretation of the CONSTITUTION in a judicial review application is not allowed is, therefore, unfounded. With regard to the Appellant's reliance on the WILLIAM HARRINGTON(5) case, he argued that that case was distinguishable from the instant case because the issue in that case boiled down to the different interpretations of the CONSTITUTION(i) which the parties had. He said that, in any case, the more recent J19 PDF Compressor Pro case of NIGEL KALONDE MUTUNAI2) superseded this Court's decision in the WILLIAM HARRINGTONI5) case. With regard to the third ground of appeal, the Respondent reiterated his submissions in support of the first ground of appeal. In his oral submissions, the Respondent repeated that the WHITE BOOK discourages applications for discharge of leave to apply for judicial review. In his view, this is because such applications present the danger of the Court delving into the substantive issues of the main judicial review application. He argued that such applications are only allowed where the application for judi:ial review is not meritorious. On the argument by the State, that In judicial reVIew proceedings the Court cannot interpret a provISIOn of the CONSTITUTION!i), the Respondent submitted that the State misread this Court's decision In the case of WILLIAM HARRINGTONI5). I:1 his view, what this Court was dealing with in that case was a siUation where the learned trial Judge replaced his decision for that of the Tribunal. He, therefore, disagreed with the contention that if be procedure being reviewed in judicial review J20 PDF Compressor Pro derives frem the CONSTITUTIONli) the Court cannot look at the CONSTITUTION(i) . The Respondent argued that once the Tribunal renders its decision to the President, the President has no discretion but to act on the recommendation of the Tribunal. He, therefore, contended that the only place where he could enjoy the right to be heard was before the Tribunal. He stated that this was why it was important for the Tribunal not to be biased. With regard to the argument by the State, that the stay of the proceedings of the Tribunal has an effect of curtailing its investigative process, the Respondent submitted that the Appellant has not raised this issue in any of its grounds of appeal. He stated further that the issue was not equally raised in the lower Court. In the alternative, the Respondent urged us to relook at our decision in the NIGEL KALONDE MUTUNA(2 ) case. We h3.ve carefully considered the arguments of Counsel and the Ruling appealed against. We will deal with the first and third grounds of appeal together because they are interrelated. We will then deal with the second ground of appeal separately. J21 PDF Compressor Pro The !::roadquestion that has been raised by the first and the second grounds 0:" appeal is 'whether the learned trial Judge properly directed himself when he held that the decision of the Tribunal, in this case, is subject to judicial review'. The State has mainly relied on the NIGEL KALONDE MUTUNAI2) case to support its arguments under these two grounds of appeal. The gist of their arguments is that since the Tribunal is an investigative tribunal, judicial review cannot be used to curtail its investigative processes. Conversely, the Respondent has contended that to suggest that a tribunal constituted to inquire into the removal of a Director of Public Prosecutions is not amenable to judicial review is preposterous. Acc::>rdingto him, after this Court's decision in the case of DERRICK CHITALAI7I, judicial review lies against inferior Courts and tribunals and against any persons or bodies which perform public functions. From the outset, we must mention that we agree entirely with the genera. proposition by the Respondent that judicial review lies against all inferior courts and tribunals and against any person or body performing public duties. This Court defined the scope of J22 PDF Compressor Pro judicial review when we decided the DERRICK CHITALA(7) case. We specifically said the followingin that case- "After all, since Ridge v. Baldwin, the distinction between judicial and administrative activities has been swept away and as a general proposition judicial review now lies against inferior courts and tribunals and against any person or bodies which perform public duties or functions. There is, of course, no blanket immunity from judicial review even for the President." Applying our decision in the DERRICK CHITALA(7) case, we cannot fault the learned trial Judge in so far as he held that no administra:ive Tribunal in Zambia is immune from judicial review. However, in our view, the question for the determination of the lower Court was net 'whether administrative tribunals in Zambia are amenable to judicial review'. The issue was 'whether the interlocutory Ruling of the Tribunal in issue is amenable to judicial review'. We must state here that although the learned Solicitor General initially contended that the said Ruling was a final decision, we are of the firm view that it was in fact an interlocutory decision. That Ruling simply determined issues raised by the Respondent m an interlocutory application. The Ruling did not decide on the J23 PDF Compressor Pro substantive issues before the Tribunal. It cannot, therefore, be said to have been a final decision of the Tribunal. So, the ques:ion still remains -'can judicial review lie to challenge the interlocutory Ruling of the Tribunal?' We have explored cur local jurisprudence and we have not found any authority on this subject. This Issue has, however, been pronounced on by some Courts within the Commonwealth. For instance, in Canada, the law on the principles of judicial review of interim decisions of administrative tribunals is very well developed. In HALIFAX REGIONAL MUNICIPALITY, A BODY CORPORATE DULY INCORPORATED PURSUANT TO THE LAWS OF NOVA SCOTIA (APPELLANT) AND NOVA SCOTIA HUMAN RIGHTS COMMISSION, LUCIEN COMEAU, LYNN CONNORS AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA (RESPONDENTS) AND CANADIAN HUMAN RIGHTS COMMISSION (INTERVENER)181, the Supreme Court of Canada stated that- "The second aspect of Bell (1971) is its approach to judicial intervention on grounds which have not been considered by the tribunal or before an administrative process has run its course. J24 PDF Compressor Pro Since Bell (1971), courts, while recognIzmg that discretion to intervene, have shown restraint in doing so.... they have a and theoretical there are While such intervention may sometimes be appropriate, .... Early reasons sound practical for restraint intervention risks depriving the reviewing court of a full judicial imposition of a record bearing on the issue; allows for judicial "correctness" to legal questions that, had standard with respect they been decided by the tribunal, might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive legislative regimes .... in short-circuiting Thus, reviewing courts now show more restraint the decision-making role of a tribunal, particularly when asked to review a preliminary screening decision such as that at issue in Bell (1971). Moreover, contemporary administrative law accords more value to the considered opinion of the tribunal on legal questions, whether for the tribunal's correctness or reasonableness." ruling is ultimately reviewable in the courts In addition to the above, in the case of CITY OF TORONTO V. THE DREAM TEAM(91, the Ontario Supreme Court of Justice also had occasion to decide on principles regarding judicial review of interlocutory decisions of administrative tribunals. In that case, the City of Toronto sought judicial review of two interim decisions of the Ontario Human Rights Tribunal which had refused the City's requests for early dismissal of the relevant application under the Ontario Human Rights Code. In a decision delivered on behalf of a three member panel of Judges, SWII',-TONJ. dismissed the J25 PDF Compressor Pro application for judicial review on the basis that the decisions by the Tribunal were reasonable, and the application for judicial review was premature. The Court noted that judicial review of interim decisions of administrative tribunals will occur only in exceptional cases. In a paper, prepared for the OBA 2013 Annual Human Rights Update titled 'JUDICIAL REVIEW OF HUMAN RIGHTS CASES - RECENT KEY DECISIONS*I, George WAGGOTThas discussed the decision of the Ontario Supreme Court in the DREAM TEAM(91case. He has said, among other things, that the Courts are unwilling to review interim decisions of tribunals because they do not want to fragment and delay administrative proceedings before specialized bodies which are entitled to be the masters of their own procedures. Further, Carolyn BRANDOW, in her paper titled "Judicial Review of Tribunal Decisions"ldl, discussed a Canadian case of MRAK V. CANADA (MINISTER OF HUMAN RESOURCES AND SOCIAL DEVELOPMENT)llOI. Under the subheading 'interim decisions difficult to challenge', she stated that- J26 PDF Compressor Pro "Judicial review is not usually available in respect of interlocutory decisions regarding the process leading to a final decision. To complain about the process, the court will usually make you wait until the entire process has concluded and a decision rendered by the tribunal at the conclusion of a hearing. It is much harder than for leave to appeal an interlocutory court even meeting the test decision. To persuade the Court to hear a complaint about an interlocutory or preliminary tribunal decision, you will likely have to persuade the court there would be a fundamental failure of justice." that without relief, The High COl:.rtof Australia also pronounced itself on the law relating to judicial review of interim decisions of administrative tribunals, when it decided the case of AUSTRALIAN BROADCASTING TRIBUNAL V. BOND ("BOND MEDIA CASE")(lll. It stated that- "a reviewable decision is one for which provIsIon is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense I at the issues of fact falling for consideration." The legal principles established by the above authorities can be summarised as follows: the Court's power to intervene to review a preliminary decision of an administrative tribunal is discretionary. This discretion will only be exercised in exceptional cases. A Court must exercise great restraint before exercising its discretion to review an interlocutory decision of an administrative tribunal. To persuade the Court to hear and determine an application for J27 PDF Compressor Pro . '. judicial reVIew of an interlocutory decision of an administrative tribunal, the applicant must es:ablish that, without being afforded relief, there would be a fundamental failure ofjustice. There are a number of reasons for the undesirability of subjecting interlocutory decisions of administrative tribunals to judicial review. Courts should only intervene when it is absolutely clear that the applicant would suffer a fundamental failure of justice. Otherwise, if a Court intervenes before the tribunal renders its final decision, there is a risk of the Court straying into deciding on the correctness or merits of the preliminary issues. In addition, allowing judicial review of interlocutory decisions of administrative tribunals would hinder them from efficiently conducting their administrative inq'.liries. In our view, the need to protect constitutional office holders from unfairness In the process of enforcing investigative constitutional procedures for their removal from office must be balanced with the equally important need not to make the said investigative procedures practically untenable or unduly protracted. J28 PDF Compressor Pro , " Taking a leaf from the Canadian and Australian authorities, already re:-erred to above, we are of the view that, in the instant case, judicial review cannot lie to challenge the interlocutory Ruling of the Trib-.mal. In our view, the Respondent did not establish any grounds tl-_atcan be said to have made his application for judicial review so exceptional that without reviewing the Tribunal's Ruling, he would suffer a fundamental failure of justice. In fact, it is not in dispute that the Tribunal in issue is merely an investigative tribunal intended to afford the Respondent a hearing on the allegations made against him. This is in line with the constitutional protection of the ten ..lre of office for the Director of Public Prosecutions as envisaged by Article 58 of the CONSTITUTION. The Respondent has, howeve:-, maintained that in seeking judicial review, he is simply trying to ensure that his Tribunal hearing complies with open justice principles and the decisions made by the Tribunal are not illegal, irrational or procedurally Improper. He has argued that once the Tribunal makes its recommen:iation t::>the President, the President will be bound to implement the recommendation without exercising any discretion. J29 PDF Compressor Pro . " According to the Respondent, once the Tribunal submits its recommendations to the President, there is no provision for him to be heard. The above contention by the Respondent is based on Article 58(4) of the CONSTITUTION Ii)which provides that- appointed under clause the "(4) Where a tribunal President that a person holding the office of Director of Public Prosecutions ought to be removed from office for incompetence or remove such inability or person from office." for misbehaviour, the President (2) advises shall Although Article 58(4) of the CONSTITUTIONI1 ) leaves the President with no discretion with regard to the recommendation of the Tribur:al, we do not agree with the Respondent that the said Article closes the door to judicial checks on the recommendation itself. The recommendation of the Tribunal, being its final decision, is subject to judicial review. Accordingly, the Respondent retains the liberty to ask the Court to review the procedure used by the Tribunal to arrive at the recommendation and could even apply for a stay of the said decision. In our view, it would not be in the interest ofjustice to open all interlocutory rulings of the Tribunal to checks for illegality, irrationality and procedural impropriety. Much J30 PDF Compressor Pro i " , as constitutional office holders must be afforded avenues for ensuring that they are treated fairly by investigative tribunals, a balance should be struck to ensure that inquiries by administrative tribunals into the conduct of constitutional office bearers are not made impossible or unduly fragmented through interlocutory proceedings. For the foregoing reasons, we hold that the interlocutory Ruling of the Tribunal in dispute is not subject to judicial review and the learned review Judge ought not to have granted leave. We now come to the second ground of appeal. The Appellant has stated that the lower Court misdirected itself when it held that judicial review proceedings against the Tribunal would not amount to interpreting Article 58 of the CONSTITUTION!il. In light of our decision under the first and third grounds of appeal, that judicial review is not available for the review of the Tribunal's interlocutory Ruling in issue, we are of the view that it is unnecessary to deal with the second ground of appeal. This is because our holding on the first and third grounds of appeal clearly means that the lower Court should not have entertained the application for leave to apply J31 PDF Compressor Pro l ' I , for judicial review. It is trite law that this Court can decide not to deal with an issue if deciding on the issue becomes unnecessary. This is what we said when we decided the case of WILLIAM HARRINGTONI51. We specifically stated that- "Wewish to add that a trial or appellate Court, is at liberty not to rule on an issue raised before it, if it is of the view that ruling on such an issue is unnecessary or would go beyond what needs to be adjudicated upon. Of course, we still stand by our earlier decision that a Court should adjudicate on all issues placed before it; so as to achie~e finality. However, we wish to emphasize that such an issue must be necessary or relevant, and properly brought or raised before the Court .... " Accordingly, on the totality of the issues raised in this appeal, we find merit in the appeal and we allow it. Since the appeal has raised issues of great legal importance, we make no order as to costs. \ 03r--~==~=-,c-----... I. C. Mambilima CHIEF JUSTICE /~~~ SUPREME COURT JUDGE J32 PDF Compressor Pro l ,. •• '. C::::::\j,--£2 G H. Chibomba SUPREME COURT JUDGE .~----~"'''''- E. C. Mu ~e SUPREME COURT JUDGE /7.~i E. M.(~du SUPREME COURT JUDGE J33