Selected Judgment NO.1 Of 2016 BETWEEN: CORAM ... THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: THE ATTORNEY-GENERAL AND MUTEMBO NCHITO • Selected Judgment

IN THE SUPREME COURT OF ZAMBIAHOLDEN AT NDOLA(CIVIL JURISDICTION)

BETWEEN:THE ATTORNEY-GENERALANDMUTEMBO 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; Mr.A. Mwansa, SC, Solicitor-General, and Mr. C.Hara, Principal State Advocate; Attorney-General's Chambers.In person.

JUDGMENT

....

MAMBILIMA,CJ, delivered the Judgment of the Court.

CASES REFERRED TO-

1. WYNTER M. KABIMBA V. THE ATTORNEY-GENERAL AND LUSAKACITY COUNCIL, (1995-1997) ZR 152;

2. ATTORNEY-GENERAL V. NIGEL KALONDE MUTUNA AND 2 OTHERSAPPEAL NO. 008 OF 2012 (UNREPORTED);

3. SENTOR MOTORS LIMITED AND 3 OTHERS (1996) SCZ JUDGMENTNO.9 OF 1996;

4. COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS V. MINISTERFOR THE CIVIL SERVICE (1985) AC 370;

5. WILLUM HARRINGTON V. DORA SILIYA AND ATTORNEY GENERALSCZ JUDGMENT NO. 14 OF 2011;

6. C AND S INVESTMENTS LIMITED, ACE CAR HIRE LIMITED, SUNDAYMALUBA V. THE ATTORNEY-GENERAL (2004) ZR 216;

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7. DERRICK CHITALA (SECRETARY OF THE ZAMBIA DEMOCRATICCONGRESS) V. ATTORNEY-GENERAL (1995-1997) ZR 91;

8. HALIFAX REGIONAL MUNICIPALITY, A BODY CORPORATE DULYINCORPORATED PURSUANT TO THE LAWS NOVA SCOTIA(APPELLANT) AND NOVA SCOTIA HUMAN RIGHTS COMMISSION,LUCIEN COMEAU, LYNNCONNORS AND HER MAJESTY THE QUEENIN RIGHT OF THE PROVINCE OF NOVA SCOTIA (RESPONDENTS)AND CANADIANHUMANRIGHTS COMMISSION (INTERVENER), 2012SCC 10;

9. CITY OF TORONTO V. THE DREAM TEAM, 2012 ONSC 3904(CANLII);

10. MRAK V CANADA (MINISTER OF HUMAN RESOURCES ANDSOCIAL DEVELOPMENT) (2007) F.C. 909; AND

11. AUSTRALIAN BROADCASTING TRIBUNAL V. BOND ("BONDMEDIA CASE") (1990) HCA 33; (1990) 170 CLR 321 (26 JULY, 1990).

LEGISLATION REFERED TO-

(i) CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OFZAMBIA;

(ii) RULES OF THE SUPREME COURT (WHITE BOOK), 1999;(iii) STATE PROCEEDINGS ACT, CHAPTER 71 OF THE LAWS OF

ZAMBIA;AND(iv) INQUIRIES ACT, CHAPTER 41 OF THE LAWSOF ZAMBIA.

OTHER WORKS REFERRED TO-

(a) CONCISE OXFORD DICTIONARY, EIGHTH EDITION, 1990, PAGE285;

(b) BLACK'S LAW DICTIONARY, SIXTH EDITION, WEST PUBLISHINGCOMPANY, 1990, PAGE 383;

(e) GEORGE WAGGOTT, 'JUDICIAL REVIEW OF HUMAN RIGHTS CASES- RECENT KEY DECISIONS', OBA 2013 ANNUAL HUMAN RIGHTSUPDATE; AND

(d) CAROLYN BRANDOW, "JUDICIAL REVIEW OF TRIBUNALDECISIONS", 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

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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; and3. 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.

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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 Sakalashould 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 inspite of the highly public genesis of this matter and the public andcontumelious abuse the Applicant has suffered at the hands of hisaccusers including being arrested on a warrant issued by a Courtthat had no jurisdiction over him;

3. the decision of the Tribunal that the terms of reference against theApplicant need not be drafted so as to conform to the stipulations inthe Constitution;

4. the decision of the Tribunal that the President, as appointingauthority, can add charges after the Tribunal has been set upwithout recourse to the Tribunal and the Applicant thereby creatingthe impression that if he so wishes, The President can keep addingcharges and thereby create a Tribunal in perpetuity,notwithstanding that the Applicant remains on suspension duringthis period;

5. the decision by the Tribunal to hold sittings and even make rulingswithout there being procedure set up for such sittings by theappointing authority;

6. the decision of the Tribunal to commence sittings to inquire intomatters that are the subject of appeal in the High Court andSupreme Court in Cause Number HPA/08/2015 andSCZ/9/50/2015;and

7. the decision of the Tribunal communicated to the Applicant on 16thMarch, 2015, to sit in camera which decision was made withoutaffording the Applicant an opportunity to be heard.

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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 followinggrounds:

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 suchflies in the face of section 16 of the State Proceedings Act, Chapter71 of the Laws of Zambia, that prohibits grant of injunctions againstthe State."

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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:

"Irespectfully agree that following these arguments, applications forjudicial review are not civil proceedings within the meaning of theState Proceedings Act. 1 further agree that a stay in thesecircumstances is not an injunction. 1 am aware that, regrettably,personalities are involved in this case, but that does not alter thefact that the proceedings are an enquiry into a discretionaryministerial decision, not a civil proceeding."

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 ofjudicial review.

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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

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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 themere act of subjecting tribunals to the process of judicial reviewwould not result in curtailing its processes or investigativeprocesses;

2. that the Court below misdirected itself in law and fact when it heldthat judicial review proceedings against the Tribunal would notamount to interpreting Article 58 of the Constitution; and

3. that the Court below erred in law and in fact when it held thatjudicial review proceedings can lie against an investigativeTribunal."

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

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Tribunal to the process of judicial reVIewwould 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 ofATTORNEY-GENERAL V. NIGEL KALONDE

MUTUNA .l\.ND2 OTHERSl21 where this Court said that-

"Wefurthermore agree with the Appellant that, as was held in thecase of C and S Investments Limited, Ace Car Hire Limited, SandyMaluba v. Attorney General, (No. 24 of 2004) since the tribunalprocesses are investigative in nature, judicial review cannot be usedto curtail these investigative processes. It should also be noted thatthe President appoints a tribunal. ... Thus, the President must acton the advice of the Tribunalwithout 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

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MOTORS LIMITED AND 3 OTHERSI31where 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 KALONDEMUTUNA(2)

case where we stated-

"Wehold the view that the provisions of Article 98 being very clearand unambiguous have to be interpreted using the literalinterpretative method. The provisions of Article 98 being very clearand nambiguous, no Court has any mandate to amend themthrough interpretation. We cannot imply anything in theseprovisions nor can we bring into interpretation of these provisionsglosses and interpolations derived from the doctrine of case law.

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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 officeholders.

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 judicialreview. In so doing, he delved into the merits of the matters hesubstituted 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.

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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,

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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

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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

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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 singleJudge, in the first instance without a hearing .... The purpose of therequirement of leave is:

(a)to eliminate frivolous, vexatious or hopeless applications forjudicial review without the need for a substantive inter partesjudicial review hearing; and

(b)to ensure that an application is only allowed to proceed to asubstantive hearing if the court is satisfied that there is a casefit 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

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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 ofNIGEL KALONDE MUTUNA(2) where this Court said that-

"It is also worth mentioning that through the appointment of atribunal, those Judges mentioned to be the subject of investigationsare given a chance to be heard through the tribunal because it is aninvestigation not a prosecution. So there is compliance with theopen 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-GENERALI71 where we stated that-

"After all, since Ridge v. Baldwin, the distinction between judicialand administrative activities has been swept away and as a generalproposition judicial review now lies against inferior courts andtribunals and against any persons or bodies which perform publicduties or functions. There is, of course, no blanket immunity fromjudicial 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

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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 MUTUNAl21 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

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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 MUTUNAl21 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

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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

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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

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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.

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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

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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 judicialand administrative activities has been swept away and as a generalproposition judicial review now lies against inferior courts andtribunals and against any person or bodies which perform publicduties or functions. There is, of course, no blanket immunity fromjudicial 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

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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 judicialintervention on grounds which have not been considered by thetribunal or before an administrative process has run its course.

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25Since Bell (1971), courts, while recognIzmg that they have adiscretion to intervene, have shown restraint in doing so....

While such intervention may sometimes be appropriate, there aresound practical and theoretical reasons for restraint .... Earlyjudicial intervention risks depriving the reviewing court of a fullrecord bearing on the issue; allows for judicial imposition of a"correctness" standard with respect to legal questions that, hadthey been decided by the tribunal, might be entitled to deference;encourages an inefficient multiplicity of proceedings in tribunalsand courts; and may compromise carefully crafted, comprehensivelegislative regimes ....

Thus, reviewing courts now show more restraint in short-circuitingthe decision-making role of a tribunal, particularly when asked toreview a preliminary screening decision such as that at issue in Bell(1971).

Moreover, contemporary administrative law accords more value tothe considered opinion of the tribunal on legal questions, whetherthe tribunal's ruling is ultimately reviewable in the courts forcorrectness or reasonableness."

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 ofToronto sought judicial reviewof 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

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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 OBA2013 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-

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27"Judicial review is not usually available in respect of interlocutorydecisions regarding the process leading to a final decision. Tocomplain about the process, the court will usually make you waituntil the entire process has concluded and a decision rendered bythe tribunal at the conclusion of a hearing. It is much harder thaneven meeting the test for leave to appeal an interlocutory courtdecision. To persuade the Court to hear a complaint about aninterlocutory or preliminary tribunal decision, you will likely haveto persuade the court that without relief, there would be afundamental failure of justice."

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 orunder a statute. That will generally, but not always, entail a decisionwhich is final or operative and determinative, at least in a practicalsense 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

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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.

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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.

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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-

"(4) Where a tribunal appointed under clause (2) advises thePresident that a person holding the office of Director of PublicProsecutions ought to be removed from office for incompetence orinability or for misbehaviour, the President shall remove suchperson from office."

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

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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

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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 torule on an issue raised before it, if it is of the view that ruling onsuch an issue is unnecessary or would go beyond what needs to beadjudicated upon. Of course, we still stand by our earlier decisionthat a Court should adjudicate on all issues placed before it; so as toachie~e finality. However, we wish to emphasize that such an issuemust be necessary or relevant, and properly brought or raised beforethe 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. MambilimaCHIEF JUSTICE

/~~~

SUPREME COURT JUDGE

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C::::::\j,--2G

H. ChibombaSUPREME COURT JUDGE

.~----~"'''''-E.C. Mu ~e

SUPREME COURT JUDGE

/7.~iE.M.(~du

SUPREME COURT JUDGE

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Documents

Selected Judgment NO.1 Of 2016 BETWEEN: CORAM ... THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: THE ATTORNEY-GENERAL AND MUTEMBO NCHITO • Selected Judgment