Universal Church of the Kingdom v Registrar of Societies and Anor (Appeal 128 of 1998) [1999] ZMSC 75 (4 February 1999)

Appeal No. 128/98 SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA AND LUSAKA (Civil Jurisdiction) BETWEEN: THE UNIVERSAL CHURCH OF THE KINGDOM AT LUSAKA APPELLANT AND THE REGISTRAR OF SOCIETIES 1ST RESPONDENT AND THE ATTORNEY-GENERAL 2ND RESPONDENT Coram: Chirwa, Lewanika, Chibesakunda, JJS. 2nd December, 1998 and 4th February, 1999 For the Appellant: Mr. Lisimba of Lisimba 8 Co. Mr. W. M. Kabimba of Kabimba & Co. For the Respondent: D. Mupeta, State Advocate JUDGMENT Lewanika, JS. delivered the judgment of the court. When we heard this appeal on 2nd Decemoer, 1998 we decided to allow the appeal and set aside the judgment of the learned trial Judge and issued an order of certiorari quashing the decision to de-register the appellanc church and said that we would give our reasons later and we now do so. The facts of the matter before the learned trial Judge which are not in dispute are that the appellant church was registered under Section 7 (1) of the Societies Act and issued with a certificate of registration on 30th November, 1995. On 20th August, 1938 the appellants were served with a notification of cancellation of registration. This notification was issued and J2 signed by the Registrar of Societies and was couched in the following terms "... I hereby give you notice that in accordance with Section 13 (2) of the Societies Act, I have this day cancelled your registration under the said Act on the grounds that: Your continued registration is not in the interest of peace, welfare of good order in Zambia as you are pursuing unlawful objects other than your declared objects which is in contravention of the provisions of section seventeen of the Societies Act (Cap. 119 Section 13). Any appeal to the Minister against this cancellation must be delivered to the Permanent Secretary, within twenty- one days." On 24th August, 1998 Gazette Notice No. 373 of 1998 was published which provided as follows "It is hereby notified for public information that in accordance with section 15 (d) of the Societies Act, the following society in the schedule below has been cancelled from registration under the provisions of Section 13 (1). P. O. Box 50067, Hon. P. Machungwa LUSAKA MINISTER OF HOME AFFAIRS SCHEDULE UNIVERSAL CHURCH OF THE KINGDOM OF GOD“ Following these events on 28th August, 1998 the appellant instituted proceedings for Judicial Review pursuant to Order 53 (3) of the Rules of the Supreme Court claiming the following reliefs: 1. An order of certiorari to remove into the High court for purpose of quashing the decision of the Registrar of Societies whereby he decided on 20th August, 1998 to cancel the registration of the Universal Church of the Kingdom of God. J3 2. Further or tn the alternative a declaration that the decision by the Registrar of Societies is void and of no effect as it was unfair and unreasonable and contrary to the rules of natural justice. The grounds on which the reliefs were sought were as follows: (a) That the decision of the Registrar of Societies made on 29th August, 1998 was unfair. (b) That the decision of the Registrar of Societies made on 20th August, 1998 was made in bad faith and is an abuse of authority. (c) That the decision of the Registrar of Societies made on 20th August, 1998 was unreasonable and hence contrary to the rules of natural justice. The parties adduced affidavit and viva voce evidence before the learned trial Judge. After considering the evidence adduced before her and the provisions of the Societies Act and the authorities cited to her the learned trial Judge came to the following conclusions:- (i) That the notification of cancellation issued by the Registrar of Societies was null and void and of no effect as the reasons given by the Registrar do not apply to a cancellation by the Registrar under Section 13 (2) of the Act but are only applicable to a cancellation by the Minister in terms of Section 13 (1) of the Act. J4 (ii) That the notification of cancellation by the Registrar of Societies was also null and void as the Registrar did not comply with Section 13 (3) of the Act in that he did not give the appellant prior notice of his intention to cancel registration and did not afford the appellant an opportunity to submit reasons why registration should not be cancelled. (ili) That the cancellation of the appellant's certificate of registration was done by the Minister of Home Affairs pursuant to Section 13 (1) of the Act as advised by Gazette Notice No. 373 of 1998. (iv) That a cancellation by the Minister under Section 13 (1) of the Act does not require prior notification pursuant to Section 13 (3) as it is only applicable to cancellation by the Registrar under Section 13 (2). (v) That the cancellation by the Minister of the appellant's certificate of registra­ tion was valid. It was against these findings that the appellant has appealed. Counsel for the appellant has filed two grounds of appeal namely 1. That the learned trial Judge erred in law and fact in deciding that the appellant church was de-registered by the Minister of Home Affairs and not the Registrar of Societies contrary to the evidence on record. J5 2. That the learned trial Judge erred in law in deciding that the purported de-registration of the appellant church by the Minister of HOme Affairs was lawful. In arguing the first ground of appeal counsel submitted that it is very clear from the documentary evidence on record that the de-registration of the appellant church was effected by the Registrar of Societies in exercise of his powers as provided under Section 13 (2) as read together with Section 17 of the Societies Act. He said that this issue came out clearly in the notification of cancellation personally signed by one Hubert Nyendwa In his capacity as Registrar of Societies. He further submitted that apart from the affidavit evidence under paragraph 8 of Nyendwa’s affidavit there is no evidence on record to show that the Minister of HOme Affairs actually effected the de-registeration of the appellant church. He further pointed out that the respondent did not call the Minister to testify. In arguing the second ground counsel submitted that the learned trial Judge erred in law and in fact in holding that the Registrar of Societies was conveying information on behalf of the Minister by his notification of cancellation to the appellants dated 20th August, 1998 and further that Gazette Notice No. 4722 constituted notice of cancellation by the Minister to the appellants. In closing he urged us to allow the appeal and quash the decision to de-register the appellant church. In reply counsel for the respondents submitted that the learned trial Judge did not misdirect herself when she decided that the appellant church was de-registered by the Minister of Home Affairs and not the Registrar of Societies, and that conse­ quently the appellants in their application for Judicial Review were attacking the wrong decision. He said that section 13 of the J6 Societies Act provides for two types of cancellation and that both these subsections provide for separate and distinct reasons for cancellation either by the Minister or the Registrar. He submitted that the reasons that appear on the notification of cancellation are reasons tnatonly the Minister and not the Registrar can invoke to de-register a society. He further submitted that Gazette Notice No. 374 of 1998 clearly stated that the cancellation was effected by the Minister pursuant to Section 13 (1) and was in fact signed by the Minister. He further submitted that the learned trial Judge did not err in law and fact in her decision that the Registrar of Societies was conveying information on behalf of the Minister. He said that under Section 15 of the Act whether a cancellation is effected by the Minister or Registrar, the Registrar has a statutory duty to issue a notice of cancellation. However, he later conceded that the provisions of Section 13 (3) of the Act requiring prior notification apply to cancellation of registration both by the Minister and the Registrar of Societies and in the circumstances he was not in a position to support the findings of the learned trial Judge in this regard. We have considered the submissions made by counsel for the appellant and for the respondents as well as the evidence on record. We shall deal firstly with the finding by the learned trial Judge that cancellation of the appellant’s certificate of registration was effected by the Minister of Home Affairs and not the Registrar of Societies. The notification of cancellation of registration whose contents we have already recited appears on page 41 of the record and was issued and signed by the Registrar of Societies. There is nothing in the notification to suggest that J7 it was being issued on behalf of the Minister. The fact that the reasons given in the notification of cancellation are those that can only be given by the Minister does not of itself mean that the cancellation was done by the Minister. The document speaks for itself, it states quite clearly that it was issued pursuant to 13 (2) of the Act by the Registrar of Societies and signed by the same person. The Gazette notice issued by the Minister on which the learned trial Judge seems to have relied upon in arriving at her decision was issued pursuant/ Section 15 (d) of the Act. to This section deals with publication of registration, cancellation, exemption etc. of societies. The purpose of this section is to notify the general public that such and such society has been registered, exempted or has had its certificate of registration cancelled. And Under the section It is the Registrar and not the Minister who is required to Issue the Gazette notice as was the case here. Thus the learned trial Judge ought not to have found that the cancellation of the appellant's certificate of registra­ tion was effected by the Minister and not the Registrar as such a finding flies In the teeth of the evidence and is untenable. We now turn to the finding by the learned trial Judge that a cancellation by the Minister under Section 13 (1) of the Act does not require prior notification pursuant to Section 13 (3) as it is only applicable to cancellation by the Registrar under Section 13 (2). Section 13 (3) provides as fol lows 13 (3). "Prior to cancelling any registration under the provisions of this section, the Registrar shall notify his intention to the . ;iety cancerned and shall give such society an opportunity to submit reasons why the registration should not be cancelled." The requirements of this section are mandatory and for very good reasons too. This section affords a registered society the J8 opportunity to make representations to the authorities concerned before registration is cancelled. The freedom of conscience, expression and association is enshrined and protected under Part III of the Constitution of Zambia as one of the fundamental rights and freedoms of the individual and is not to be taken away lightly at the whim or fancy of some bureaucrat. Section 13 (3) applies to cancellation of registration both by the Minister and the Registrar and not as found by the learned trial Judge In the instant case there was no such prior notification. To put it mildly the whole manner in which the exercise to de-register the appellant church was done, was a comedy of errors. It was for these reasons that we allowed the appeal and set aside the Judgment of the lower court and issued an order of certiorari quashing the decision to oe-register the appellant church with costs. The costs are to be taxed in default of agreement. D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE L. P. Chibesakunda SUPREME COURT JUDGE