The Peope Ex Parte Wonder Fundiwa and 166 Ors v The Zambia Revenue Authority (Application No. 004/2023; CAZ/08/568/2022) [2023] ZMCA 362 (9 February 2023)

IN THE COURT OF APPEAL OF ZAMBIA Application No. 004 / 2023 HOLDEN AT LUSAKA ( Civil Jurisdiction) CAZ/08 / 568 / 2022 IN THE MATTER OF: ORDER 53 OF THE 1965 RULES OF THE SUPREME COURT 1965 (RSC) WHITEBOOK, 1999 EDITION VOLUME 1 IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW IN THE MATTER OF: FOR DECLARATORTY ORDER THAT A NON PARTY TO THE PROCEEDINGS IS BOUND BY AND COURT ORDERS JUDGMENTS RULINGS AND THE ZAMBIA REVENUE AUTHORITY Respondent CORAM: Makungu, Ngulube and Sharpe-Phiri, JJA on 9 th February 2023 For the Applicants: Mr. C. K. Simukonda of Kang'ombe & Associates For the Respondent: Mr. F. Chibwe and Mrs. S. Chanda, In-House Counsel, Zambia Revenue Authority Ex tempore Ruling SHARPE-PHIRI, JA, delivered the Ruling of the Court Rl Legislation referred to: 1. The Rules of the Supreme Court Practice, 1965 (White Book} RSC 1999 2. The Court of Appeal Rules, Statutory Instrument No. 65 of 2016. Cases referred to: 1. R v Inland Revenue Commissioners, ex. P. National Federation of Self Employed and Small Businesses Limited (1982) A. C. 617 This is a ruling on an application made by the Applicants, Wonder Fundiwa and 166 Others seeking leave to apply for judicial review against a purported decision of the Zambia Revenue Authority the Respondent herein, via letter of 7 December 2020 to declare that it is not bound by the Rulings on stays of execution of 4 February 2022 and 21 April 2022 made under cause numbers COMP /IRD / LK/ 684 /2021 and COMP /IRC /LK/204 /2022 respectively. The application was brought before us by way of a renewed ex parte summons on 26 January 2023 and made pursuant to Order 53 Rule 3(4) and (5) of the 1965 Rules of the Supreme Court (RSC), White Book, 1999 Edition as read with Order VII Rule 1 ( 1) and (2) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016. The contention of the Applicants under the renewed application for leave is that the Respondent has, via letter dated 7 December 2022 refused to comply with or obey Rulings and/ or Orders of Court served on them by the Applicants. R2 Arising from these contentions, the relief sought by the Applicants in the Notice of application dated 26 January 2023 is as follows : i) An Order of Certiorari to quash the decision of the Zambia Revenue Authority to declare that it is not bound to and to refuse to obey the Rulings on stay of execution dated 4 February 2022 and 21 April 2022 under causes COMP/IRD/LK/684/2021 and COMP IRC/LK/204/2022 respectively and to decide to process trucks and trailers even those that are subject to active Court proceedings in Zambia. ii) An Order of Mandamus compelling and directing the Zambia Revenue Authority not to clear or allow to exit out of Zambia any trucks and trailers that are subject to Court proceedings or Court Rulings or Order in Zambia. iii) A Declaration and Order that the decision and omissions and / or neglect made by Zambia Revenue Authority through its letter dated 7 December 2022 is null and void ab initio. iv) A Declaratory Order that a non-party to the proceedings is legally obliged to obey Court judgments, rulings or Orders. v) If leave is granted as prayed, it should operate as an Order for stay of the decision of the Respondent to clear trucks and trailers that are subject of Court proceedings or Orders or Rulings until full determination of the matter or further Order of the Honourable Court. R3 vi) If leave is granted a direction that the hearing of the application for Judicial Review be expedited. vii) Costs. The grounds upon which relief is sought are that the decision of the Zambia Revenue Authority through its letter dated 7 December 2022 to declare that it is not bound by the Rulings on stay of execution dated 4 February 2022 and 21 April 2022 under cause number COMP/IRD/LK/684/2021 and COMP IRC/204/2022 respectively and to decide to process and clear trucks and trailers even those that are subject to active Court proceedings in Zambia in disobedience of the said Ruling is illegal, irrational or unreasonable and is actuated by bad faith and malice. The Applicants further contend that the trucks and trailers in question are subject of litigation and allowing them to exit Zambia will render the decisions of the Courts an academic exercise and that the Respondent is bound to assist in the administration of justice and to respect Court Rulings or Orders properly brought to its attention. The application was scheduled for an inter-parte hearing before us this morning. Both Counsel for the parties were in attendance. Counsel for the Respondent notified the Court that he had not filed an affidavit in opposition and skeleton arguments opposing the application due to the fact that he had been unable to secure R4 instructions from his client given the short notice. He sought leave of the Court to file his documentation at the hearing. The Applicant's Counsel vehemently opposed the application arguing that the Respondent's counsel had had sufficient time to file a response, the documentation having been served on the Respondent on 3 February 2023. Counsel for the Applicant also argued that in terms of the Rules of this Court, applications for extensions of time to file process must be made formally. After considering this application, we agreed with Counsel for the Applicant that the Respondent had had sufficient time to file in a response and that the viva voce application was improper. We accordingly declined to allow the application for leave to file in the process. We also declined to allow the Respondent's to make oral arguments in opposition. We directed the Applicants to proceed with their application. In submitting on the application, the Applicant's Counsel relied on the affidavit in support and the skeleton arguments contained in the Notice of Motion. Counsel submitted that by the application, this Court was being called upon to determine whether this is a case fit for commencement of judicial review proceedings. Counsel argued that it was illegal for the Zambia Revenue Authority, as a public body to refuse to obey Court orders and their decision to do so, was unreasonable. He urged us to grant leave to the Applicants to commence judicial review proceedings. RS We have carefully considered the evidence in the Notice and the argument of the Applicant's Counsel. By this renewed application, the Applicants seek leave to apply for judicial review against a decision that the Applicants contend was made by the Respondent on 7 December 2022 purported refusing to obey Orders for stay of execution made by the lower Court on 4 February 2022 and 21 April 2022 under cause numbers COMP/IRD/LK/684/2021 and COMP IRC/204/2022. The application has been brought pursuant to Order 53 Rule 3(4) and (5) RSC seeking leave to commence judicial review proceedings. The purpose of the requirement for obtaining leave is set out in Order 53/ 1-14/8 of the White Book as follows: '(a) To eliminate at an early stage any applications which are either frivolous, vexatious, or hopeless; and (b) To ensure that an applicant is only allowed to proceed to a substantive hearing if the Court is satisfied that there is a case fit for further consideration.' R6 The foregoing authorities are instructive that the purpose of the requirement to obtain leave to commence judicial review proceedings is for the Court to establish at an early stage if an application is fit for further investigation for it to p r oceed to the substantive hearing of the matter and if not to weed out frivolous and vexatious m atters. Therefore, the issue to consider is whether the Ap plicants have demonstrated a good case fit for further consid eration. In this application, th e Applicants m u st demonstrate a good arguable case that they are likely to succeed at a substantive hearing. This is in line with the provisions of the White Book and several other decided cases, particularly t h e case of R. v Inland Revenue Commissioners, ex p. National Federation of Self Employed and Small Businesses Limited 1 where Lord Dip lock stated that: 'Leave should be granted, if on the material then available the Court thinks, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the appellant.' In considering this application, on whether there is an arguable case for granting the relief claimed by the Applicant, we begin by reviewing the background of the matter before us . The facts of this case are that the Respondents were employed as truck drivers to transport cargo for Brisk Fast Limited and Brisk Fast Trading (Pty) Limited, from South Africa to the Democratic Republic of Congo via Zimbabwe, Botswana, and Zambia. Sometime in 2021, R7 while enroute to their various destinations, the Respondents went on a protest over unpaid allowances and proceeded to park their trucks at various destinations throughout the country. As a result of the Respondents actions, various Court cases were brought before the High Court for Zambia by North Star African International Logistics Limited and other companies, claiming to be the lawful owners of the trucks, and seeking the release of the trucks and trailers with the cargo. During these various proceedings, the lower Courts granted an exparte Order for stay of execution on 4 February 2022 , which was confirmed by Order of 21 April 2022. These are the Orders referred to in this application. The same Orders were the subject of an appeal under Appeal No . 142 of 2022. By our judgment of 8 February 2023, we found that the Order of stay of execution of 21 April 2022 was improper and we set it aside accordingly. Therefore , in reviewing closely whether this is a case fit for further investigation by a lower Court, we have considered the basis of this application that seeks the reliefs stated in the earlier part of our Ruling. The r eliefs claimed by the Applicants include amongst others, an Order of Mandamus compelling and directing the Zambia Revenue Authority not to clear or allow to exit out of Zambia any trucks and trailers that are subject to Court proceedings or Court Rulings or Orders in Zambia. R8 In our view, there would be no legal basis for any Court to proceed to make such an Order of Mandamus given that the Order for a stay of execution of 21 April 2022 has been set aside by this Court for being improper. The Applicants also seek to quash a decision purportedly made by the Respondent refusing to obey an order of the Court for a stay of execution. Order 53, Rule 14 ( 19) of the White Book reminds us that: 'The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision -making process itself.' The said learned authors of the White Book quote the holding of Lord Hali sham L. C . in the case of Chief Constable of North Wales Police v Evans (1982) 1 W. L. R 1155 at 1160, where he held that, 'It is important to remember in every case that the purpose of (the remedy of judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected .... ' The purpose of the remedy of judicial review is to review unreasonable and irrational administrative decisions made against a party. Judicial review is not a remedy to hold parties accountable for disobeying Court orders as is sought in the application before us. R9 As a legal practitioner, Counsel for the Applicants ought to know and be aware of the correct means of challenging or dealing with disobedience of Court orders. As our learned brother in the Court below highlighted, the alleged disobedience by the Respondents could have been addressed in the cases where the Orders emanated from. The Applicant has various avenues to raise this complaint of disobedience of a Court order, but certainly should not do so by way of commencing judicial review proceedings. We strongly disapprove of the commencement of a multiplicity of actions by Applicant's Counsel. In view of the fore going, we find that the application before us is frivolous . The case is not one that is fit for further investigation as there is no merit in the application whatsoever. We accordingly refuse to grant leave to commence judicial review proceedings. We award costs of this application to the Respondent to be agreed and in default of agreement to be taxed. C. K. Makungu COURT OF APPEAL JUDGE RlJJk P. C. M. Ngulube --------J?~ p<e__ ~ A. Sharpe-Phiti COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE RlO