IN THE HIGH COURT FOR ZAMBIA 2013/HP/0838
HOLDEN AT LUSAKA
(Civil Jurisdiction)
IN THE MATTER OF: AN APPLICATION BY KELVIN FUBE BWALYA
FOR LEAVE TO APPLY FOR AN ORDER FOR
JUDICIAL REVIEW
IN THE MATTER OF: ORDER 53 RULE 3 OF THE RULES OF THE
SUPREME COURT OF ENGLAND, 1999
AND
IN THE MATTER OF: A DECISION BY THE LEGAL PRACTITIONERS’
COMMITTEE OF THE LAW ASSOCIATION OF ZAMBIA DATED 24TH MAY 2013
BETWEEN:
KELVIN FUBE BWALYA (Male) Applicant
and
LAW ASSOCIATION OF ZAMBIA Respondent
Coram: Honourable Lady Justice F. M. Lengalenga this 25th day of
April, 2014 in chambers at Lusaka.
For the applicant: Dr. J. M. Mulwila, SC – Messrs Ituna Partners
Mr. W. A. Mubanga – Messrs Chilupe and
Permanent Chambers
For the respondent: Mr. A. J. Shonga, SC – Messrs Shamwana and
Company
____________________________________________________________
J U D G M E N T
_____________________________________________________________
Cases referred to:
1. R v LAW SOCIETY, ex-parte REIGATE PROJECTS LIMITED & OTHERS (1992) 3 ALL E R 232
2. Re HERMAN SAWMILL LIMITED v MINISTER OF FINANCE
3. ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION (1947) 2 ALL E R 680; (1948) 1 KB 223
4. CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS (1982) 1 WLR 1155 at 1160; (1982) 3 ALL E R 141
5. DEAN NAMULYA MUNG’OMBA & 2 OTHERS v PETER MACHUNGWA & 2 OTHERS (2003) ZR 17
6. CHILUBA v ATTORNEY GENERAL (2003) ZR 153
7. Re A SOLICITOR (1972) 2 ALL E R 811
8. RAHIM OBAID v THE PEOPLE (1977) ZR 119
9. NADHIM QUASMI v THE PEOPLE (1977) ZR 119
10. Re KRAY, Re KRAY, Re SMITH (1965) 1 ALL E R 710
11. COUNCIL OF CIVIL SERVICE UNION v MINISTER FOR CIVIL
SERVICE (1984) 3 ALL E R 935
12. R v CROWN COURT AT KNIGHTSBRIDGE, ex.p
INTERNATIONAL SPORTING CLUB (LONDON) LTD (1982) QB
304; (1981) 3 ALL E R 417
13. R v NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL
(1952) 1 ALL E R 122
14. ZINKA v ATTORNEY GENERAL (1990 - 92) ZR 73
This application comes by way of originating notice of motion for judicial review pursuant to Order 53, Rule 3 of the Rules of the Supreme Court, 1999 Edition (White Book). It is brought by the applicant, Kelvin Fube Bwalya and directed at the respondent, the Law Association of Zambia, hereinafter referred to as the LAZ and he seeks to challenge a decision by the Legal Practitioners’ Committee of the LAZ dated 24th May, 2013.
The relief that the applicant seeks is stated hereunder as follows:
(i) An order of certiorari to remove into this honourable Court and to quash an order made by the Law Association of Zambia’s Legal Practitioners’ Committee on the 24th day of May, 2013 that Kelvin Fube Bwalya be suspended from practice forthwith.
The grounds upon which the said relief is sought are as follows:
(1) The respondent’s Legal Practitioners’ Committee in its ruling of 24th May, 2013 made findings on matters which were not contained in the complaint against the applicant by the said Getrude Kaseko.
(2) The respondent’s Legal Practitioners’ Committee misdirected itself when it ordered that the applicant’s practicing certificate be suspended when the same Committee through another Convenor had on 16th July, 2010 directed that the applicant renders an account within 30 days of that date which the applicant did on 11th August, 2010 in compliance with the said direction in the hope and belief that the complaint had been settled.
(3) The findings by the respondent’s Legal Practitioners’ Committee in its ruling of 24th May, 2013 were at variance with the findings of the same Committee previously sitting and deciding on 16th July, 2010 in respect of the same facts and parties.
(4) The decision to suspend the applicant’s practicing certificate on 24th May, 2013 appears to have been based on the grounds which Getrude Kaseko had failed to substantiate at the Legal Practitioners’ Committee hearing before the then Convenor Justin Chashi in 2008 with documentary evidence by way of proof that she had paid K38 000 000.00 to the applicant for his onward remittance to Court. The said Convenor did not make a finding that K38 000 000.00 had been paid to the applicant for remittance as payment into Court. As alleged by the said Getrude Kaseko it is not true that such was provided for in the ex-parte order of injunction.
(5) The alleged payment to the applicant by Getrude Kaseko of the sum of K38 000 000.00 and the applicant’s purported failure to pay it into Court was untrue, irrational and impossible in that she did not provide any evidence that she ever paid any money to the applicant in that amount or at all specifically after the effective date of 28th September, 2007 when it was ordered by the Court to pay rental money into Court save for making deposits on account of costs to the applicant’s firm.
(6) That the respondent’s Legal Practitioners’ Committee misdirected itself by rendering the ruling on 24th May, 2013 without prior hearing of the applicant, after he had rendered an account of monies he had received following the respondent’s Legal Practitioners’ Committee ruling of 16th July, 2010.
(7) The respondent’s Legal Practitioners’ Committee misdirected itself in its ruling of 24th May, 2013 by making a finding that the applicant failed to render an account to its satisfaction contrary to the evidence on record.
(8) The respondent’s Legal Practitioners’ Committee was not on firm ground and lacked jurisdiction by rendering a ruling in a matter which was functus officio.
The grounds for judicial review are further premised on the following:
The Legal Practitioners’ Committee in making its decision to suspend
Kelvin Fube Bwalya from practicing law was:
(i) Wednesbury unreasonable
(ii) lacked or was in excess of jurisdiction
(iii) constituted an error of law on the face of the record, and
(iv) failed to comply with the rules of natural justice for the reasons aforestated.
The notice of motion for judicial review is supported by an affidavit in verification of facts relied upon pursuant to Order 53, Rule 3 of the Rules of the Supreme Court, 1999 Edition, filed herein on 29th June, 2013. It was sworn by the applicant, Kelvin Fube Bwalya who deposed that he is a legal practitioner and managing partner in the firm of Messrs KBF and Partners. He deposed that on or about 19th January, 2005, his firm was instructed through his then associate one Harriet Sikasote by one Getrude Kaseko under cause no. 2005/HP/0068. The said instructions in an action for specific performance were in respect of the sale of property known as Plot ? 209A, Kabwe to her by the defendants. He deposed further that his firm was instructed that the purchase price in respect of the said property was agreed at K50 million which was to be paid to Supreme Furnishers. The applicant further deposed that his firm was further instructed to apply for an injunction to among other things enable the client find the sum of K50 million to pay to the said Supreme Furnishers. A copy of the said ex-parte order of injunction obtained in favour of the said Getrude Kaseko restraining the defendant from proceeding with the sale of the property was exhibited as “KBF 3.” He added that he was aware that the said Getrude Kaseko was supposed to sell her house in Kabwe and to take the sum of K50 million to his firm by the end of February, 2005.
The applicant stated in paragraph 6 that it was agreed between them that for the injunction application only the total fees payable by her would be K8 000 000.00. He deposed that in furtherance thereof, he was paid K1 500 000.00 on 19th January, 2005 on receipt number 585 and a further sum of K1 500 000.00 on 8th February, 2005 on receipt number 524, leaving a balance of K5 000 000.00. Copies of the receipts were exhibited as “KBF 4” and “KBF 5” respectively.
He deposed that the order of injunction was made on 28th January, 2005 and that as at the date of obtaining the said order, Getrude Kaseko had shown signs of failure to raise the purchase price or was unwilling to settle it, according to the applicant’s associate Harriet Sikasote. He exhibited copies of the said Harriet Sikasote’s attendance notes as “KBF 6” and his file notes dated 30th May, 2005 as “KBF 7.”
The said Kelvin Fube Bwalya deposed further that between April and June, 2005 Getrude Kaseko was advised that in view of the circumstances disclosed of signs of failure to raise the purchase price or unwillingness to settle it, the matter would be treated as litigation and that she needed to pay a further deposit of K20 000 000.00. He stated that she promised to raise the amount after selling her maize in Mkushi. The applicant further deposed that the said client made a total deposit of K16 000 000.00 as follows:
(a) The sum of K8 000 000.00 on receipt no. 661 on 2nd August, 2005.
(b) A further sum of K5 000 000.00 on receipt no. 763 on 10th October, 2005; and
(c) A further deposit of K3 000 000.00 on receipt no. 762 on 10th October, 2005.
Copies of the receipts for 2nd August, 2005 and 10th October, 2005 were collectively marked “KBF 8” while the one for 10th October, 2005 in respect of K3 000 000.00 was marked “KBF 9.”
He further deposed that the said Getrude Kaseko never made any payments to his firm from October, 2005 until 25th January, 2007. The additional payments were made as follows:
(a) The sum of K2 500 000.00 by cheque on receipt no. 642, and
(b) The sum of K1 800 000.00 on receipt no. 643.
Copies of the receipts are exhibited as “KBF 10” and “KBF 11” respectively. He stated further that all these amounts totaled K20 300 000.00. The applicant deposed that the last payment made to the applicant in respect of the deposit by Getrude Kaseko was made on 25th January, 2007. He stated that to the best of his knowledge, information and belief, the said Getrude Kaseko only paid a total sum of K20 300 000.00 as deposit and not for any other purpose.
The applicant stated that it is not true that the injunction granted by the court made an order for payments of rentals into court. He stated further that it is not true that the said Getrude Kaseko paid a sum of K38 000 000.00 to him or his firm in order for him to effect payment into court in satisfaction of the alleged provision in the ex-parte order of injunction. He deposed that contrary to what is alleged in Getrude Kaseko’s complaint, it is not true that the monies totaling K38 000 000.00 were acknowledged by him, paid to him and receipts issued to her as alleged in the complaint. A copy of the said complaint is exhibited as “KBF 12.” He stated that he verily believes that the entire complaint was intended to mislead the respondent’s Legal Practitioners’ Committee and was untrue. Further that according to the Court ruling of 28th September, 2007 the payment of the alleged sum of K38 000 000.00 into court could only have arisen after the delivery of the ruling by the court effective the 28th September, 2007 when the court ordered, inter alia, that all rental payments should be made into court and could not have been before that date. A copy of the court ruling was exhibited as “KBF 13.” The applicant deposed that as a result of the court ruling, correspondence passed between him and the landlord’s advocates dated 28th September, 2007 and 3rd October, 2007 respectively. Copies were exhibited as “KBF 14” and “KBF 15” respectively. He stated further that the complainant did not provide any evidence that she had collected any rentals from her tenants amounting to K38 000 000.00 to the Committee or show any proof of receipt or receipts of payment of K38 000 000.00 to his firm.
The deponent stated that throughout the period he was acting for the said Getrude Kaseko, he never had instructions from her that she had collected rentals from the tenants for onward payment into court by his firm. He stated that in addition the said Getrude Kaseko in her complaint filed on 25th June, 2008 before the Legal Practitioners’ Committee did not produce any receipts or proof of payment of rentals on or after 28th September, 2007 meant for payment into court.
The applicant deposed that following the hearing of the complaint by the respondent’s Legal Practitioners’ Committee, it was decided by the said Committee in 2010 that the applicant should within thirty (30) days of the said ruling render an account of all the monies that he had received from the complainant and state for what purpose those monies were paid, failure to which the applicant would be suspended. A copy of the said ruling was exhibited as “KBF 16.” The applicant deposed further that he did render an account to the said Committee on 11th August, 2010 and he exhibited a copy of the same as “KBF 17.” He further stated that from the time he rendered an account to the respondent’s Legal Practitioners’ Committee following its ruling on 16th July, 2010, there was no communication from the said Committee by way of comments or questions arising therefrom. He stated that however, what subsequently followed was that he received a ruling dated 24th May, 2013 by Secretary, Silas Mambwe suspending him from practice. Mr. Kelvin Fube Bwalya stated that he was not given an opportunity to be heard. He stated further that he had been advised and verily believes that the Committee that rendered the ruling on 24th May, 2013 was functus officio and hence had no jurisdiction to render the said ruling, in that that same Committee had already made its decision in respect of this matter on 16th July, 2010 which he complied with. A copy of the ruling of 24th May, 2013 was exhibited as “KBF 18.”
The applicant further stated that upon receipt of the ruling (“KBF 18”) he is dissatisfied with the findings of the Legal Practitioners’ Committee for being Wednesbury unreasonable, for want or excess of jurisdiction, error of law on the face of the record and failure to comply with the rules of natural justice.
He concluded by stating that under the circumstances, he was applying for an order of certiorari to remove into this court and quash the Order made by the Law Association of Zambia’s Legal Practitioners’ Committee on 24th May, 2013 that he be suspended from practice.
The statement pursuant to Order 53 Rule 3(2) of the Rules of the Supreme Court of England, 1999 Edition restated the relief sought and the grounds upon which the respondent filed into court an affidavit in opposition to the application for an order for judicial review. The same was sworn by one Silas Mambwe, then Honorary Secretary of the Legal Practitioners’ Committee who deposed that it was true that the Legal Practitioners’ Committee received a complaint against the applicant on 25th June, 2008 and he exhibited as “SM1,” a copy of the said letter. He deposed further that although the applicant was required to respond earlier, the applicant only responded to the complaint on 17th November, 2008. He exhibited as “SM2,” a copy of the letter in response. The deponent stated further that on 21st November, 2008, the Legal Practitioners’ Committee convened a meeting at which both the applicant herein and the complainant were present. He further stated that at that meeting, the complainant chose to rely on her written complaint and the applicant adopted the same course, save to add some comments relating to a receipt that the complainant had presented.
The said Honorary Secretary deposed that after the Legal Practitioners’ Committee considered the matter, it rendered its ruling on 16th July, 2010. A copy of the same was exhibited as “SM3.” He stated that in the said ruling, the Legal Practitioners’ Committee found as follows:
(1) That the applicant had contravened Rule 14 of the Legal Practitioners’ Rules of 2002 by failing to account to his client;
(2) That the applicant had contravened Part viii of the Legal Practitioners’ Act, by failing to keep proper books of account regarding client’s money;
(3) That the applicant had breached Rule 32(3) of the Legal Practitioners’ Rules of 2002 by acting in bad faith in sending a bill to his client in the sum of K35 000 000.00 without rendering an account.
He deposed further that the Legal Practitioners’ Committee further observed that it was unclear what monies the applicant had received and for what purpose the payments were made. He added that as the Committee could not make a pronouncement until this was established, it therefore directed the applicant to render an account of all the monies that the applicant had received from the complainant. The said Silas Mambwe further deposed that the Legal Practitioners’ Committee, additionally, directed the applicant to indicate to what purpose the said monies paid were put failure to which he would be suspended.
He stated that the applicant in an attempt to comply with the ruling of the Legal Practitioners’ Committee, wrote to the Committee on 10th August, 2010. A copy of the said letter was exhibited as “SM4.” The Honorary Secretary stated further that the Legal Practitioners’ Committee considered the correspondence from the applicant and rendered its ruling on 24th May, 2013. He exhibited a copy of the said ruling as “SM5.” He deposed that in its ruling, the Legal Practitioners’ Committee decided to suspend the applicant from practice and referred the matter to the Disciplinary Committee. The deponent further stated that in compliance with its own ruling, the Legal Practitioners’ Committee duly referred the matter to the Disciplinary Committee. A copy of the said letter referring the matter to the Disciplinary Committee was exhibited as “SM6.”
He concluded by stating that it was clear from the foregoing, that the appellant had not been unfairly treated and that normal administrative procedures had not been exhausted as the Disciplinary Committee had not yet determined the matter.
The applicant, Kelvin Fube Bwalya filed an affidavit in reply to the respondent’s affidavit in opposition. He agreed with the first seven paragraphs of the affidavit in opposition. He stated that contrary to what is stated in paragraph 8, the meeting of 21st November, 2008 was a full meeting of the respondent’s Legal Practitioners’ Committee. He deposed that the Honorary Secretary at that time, Mr. Justin Chashi and other members asked a lot of questions, sought clarifications, enquired into the matter in detail and asked the applicant a lot of questions that he answered and complied totally. The applicant stated further that in all fairness, the respondent’s Legal Practitioners’ Committee ought to have exhibited the minutes of that hearing in order to amount to a full and frank disclosure of those proceedings.
The applicant stated that the findings alluded to in paragraph 10 of the affidavit in opposition are partly admitted but all that was clouded because the facts were not clear, as the Legal Practitioners’ Committee of 2010 kept repeating, hence the Committee’s final decision that he renders an account with explanations which he did. He stated further that the Committee of 2010 would not have hesitated to suspend him if they were totally convinced that he had done wrong. The applicant further stated that he verily believes that what was significant was that the Committee that sat in 2010 declared that it was unclear what monies he had received and hence its decision requiring him to render an account within thirty (30) days.
The applicant in paragraph 9 stated that he verily believes that the Committee of 2010 was very clear in its decision in that all the Committee asked for was an account with an explanation by him. He stated further that the decision by the Committee of 2010 was final on the complaint against him. He, however, stated that he verily believes that the Committee of 2013 had “other” reasons for its decision considering that he rendered his account in August 2010, after the ruling of 16th July, 2010. He deposed that Mr. Justin Chashi, the Convenor then in 2010 and his Committee received his account and explanation and did not ask for further and better particulars or summon him for any explanation or clarification.
Kelvin Fube Bwalya deposed further that there were subsequent respondent’s Legal Practitioners’ Committees ushered in 2011, 2012 and finally 2013 and the Committees of 2011 and 2012 also never asked for any explanation. He further stated that he was advised and verily believes that the 2013 Committee’s decision and the entire process involved in arriving at the decision to suspend him is ultra vires in that the whole process is unfair, unreasonable, lacks basis and is unjustified. He concluded by stating that this court has every jurisdiction to closely examine this conduct of the 2013 Legal Practitioners’ Committee and order that the decision of 24th May, 2013 may be quashed for lack of jurisdiction, excess jurisdiction, Wednesbury unreasonableness and failure to afford him an opportunity of being heard before it.
Learned Counsel for the applicant filed into court a list of authorities in support of application for an order for judicial review. They cited the relevant provisions of Rules of the Supreme Court, 1999 Edition (White Book) which relate to the mode of application, the grounds on which judicial review may be granted, the leave to apply for judicial review and the types of relief available in judicial review proceedings. Order 53, Rule 14 (39) relates to relief of certiorari and provides that:
“Certiorari is an order which brings up into the High Court a
decision of an inferior court or tribunal or of a public authority for it to be quashed. Thus, where in judicial review proceedings the court concludes that a decision which has been made by an inferior court or tribunal or a public authority should be set aside, certiorari would normally be the appropriate form of order. Where the court quashes a decision, it has power to remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and to reach a decision in accordance with the judgment given by the court in the judicial review proceedings.”
Learned Counsel for the applicant also provided authorities on jurisdiction and amenability to judicial review in the form of statute, books and case law.
In terms of statutory authorities, learned counsel for the applicant relied on section 3 on the Law Association of Zambia Act, Cap 31 of the Laws of Zambia which provides:
“There is hereby established the Law Association of Zambia
which shall by that name be a body corporate with perpetual succession and a common seal and which shall be capable of suing and being sued and subject to the provision of this Act on doing or performing such acts or things as a body corporate may by law do or perform.”
Learned Counsel also referred the court to JUDICIAL REMEDIES IN PUBLIC LAW, 2nd Edition by Clive Lewis where the learned author at page 8 and paragraph 2-005 stated as follows:
“Judicial review has been and remains principally concerned
with the activities of bodies deriving their authority from statute; where an individual seeks to challenge the exercise of power derived from statute, or seeks to compel the performance of a statutory duty, the presumption is that such an issue raises a matter of public law suitable for resolution by judicial review.”
Further in the same paragraph 2-007 and 2-008, the learned author proceeded to state the position with regard to amenability to judicial review as follows:
“Many public bodies are created by statute and exercise
statutory power. However, the important feature is the source of the power that a particular body is exercising rather than the fact that the body was set up by statute. Statutory powers may be conferred or duties imposed on bodies which are, in origin, non-statutory, private bodies. In relation to the exercise of its statutory powers, judicial review will be available……………………………………………………………………….................................................................................................................................................................................................
In the field of education, for example, religious schools were incorporated into the statutory framework of education and maintained by local authorities. In so far as they exercise statutory powers, such bodies are subject to judicial review.
……………………………………………………………………………………………………………………………………………………………………………………………………………………
The Law Society, a body created by charter, has a large number of disciplinary and regulatory functions conferred upon it by statute and the exercise of these statutory powers is amenable to judicial review.”
With respect to case law, learned Counsel for the applicant cited a few cases in which applications for judicial review were made. One such case is R v LAW SOCIETY,ex-parteREIGATE PROJECTS LIMITED AND OTHERS1, in which Reigate Projects Limited, Peter Rice Developments Limited and Raymond Rice Development Limited applied with leave of Kennedy J, granted on 7th August, 1990, for judicial review by way of orders of certiorari to bring up and quash a decision made by the adjudication committee of the Law Society on 11th April, 1990 to refuse an application by the applicants for a grant from the Law Society’s compensation fund communicated to the applicants by letter dated 19th April, 1990 and mandamus requiring the Law Society to reconsider the matters.
Watkins L J held that the Law Society was entitled to adopt a policy that clients of dishonest solicitors would only be compensated out of the compensation fund under section 36 (2)(a) of the Solicitors Act of 1974 for loss of monies entrusted to the solicitor for the client’s purposes and that compensation would not be paid for any consequential losses arising as the result of the loss of those monies. The application was therefore dismissed.
Thus in granting, the order as prayed, this court has discretion to impose terms that it will deem fit for striking a balance between rights of the applicants and those of the respondent, according to learned Counsel for the applicant. They accordingly submitted that this court being a court of law and equity is empowered to exercise the said discretion in the interest of justice.
In the applicant’s submissions filed into court on 23rd August, 2013, learned Counsel for the applicant submitted that a decision of an inferior court or a public authority may be quashed by an order of certiorari where that court or authority acted without jurisdiction, exceeded its jurisdiction or failed to comply with the rules of natural justice in a case where these rules are applicable or where there is an error on the face of the record or the decision is unreasonable in the Wednesbury sense.
They submitted further that in the instant case the applicant is not seeking this court’s review of the merits of the decision of the respondent’s Legal Practitioners’ Committee that was made on 24th May, 2013. He is impugning or questioning the decision making process that he was subjected to and he alleges that he was not given fair treatment by the respondent’s Committee. The applicant’s allegation is based on his contention that he was not afforded an opportunity to be heard by the respondent’s second Legal Practitioners’ Committee which made a decision to suspend his practicing certificate. It is further contended on behalf of the applicant that the second Legal Practitioners’ Committee lacked or exceeded its jurisdiction to make such a decision because it was Wednesbury unreasonable in the sense that the matter had already been adjudicated upon by a competent Committee on 16th July, 2010. Learned Counsel for the applicant relied on the case of Re HERMAN SAWMILL LIMITED v MINISTER OF FINANCE2 where it was contended by the appellant that the Minister having exercised his discretion when the original assessments were made and there being no new relevant facts drawn to his attention with respect to the matter he was functus officio and could not re-exercise his discretion.
In the present case learned Counsel for the applicant submitted that their understanding of the definition functus officio in relation to this case is that the second Legal Practitioners’ Committee which made its ruling against the applicant on 24th May, 2013 did not have further authority or legal competence to make that decision because the duties and functions of the original Legal Practitioners’ Committee which decided the matter on 16th July, 2010 had been fully accomplished.
They submitted further that the other doctrine that is closely related to functus officio and relevant to these proceedings is that of “res judicata.” They stated that in BLACK’S LAW DICTIONARY Seventh Edition at page 13682, the learned author defines ‘Res Judicata’ as follows:
“That a thing adjudicated, an issue that has been definitely
settled by judicial decision, a situation where parties have been barred from litigating a second law suit on the same claim or any other claim arising from the same transaction or series of transactions and that could have been, but was not raised in the first suit.”
They submitted that, therefore, the respondent’s second Legal Practitioners’ Committee lacked and exceeded jurisdiction to conduct itself as it did.
Learned Counsel for the applicant further submitted that a matter which had two different rulings dated 16th July, 2010 and 24th May, 2013 respectively, on the same facts and parties, clearly amounted to an error of law on the face of the record. They submitted that this justified the grant of judicial review.
The applicant further alleged that prior to making the decision on 24th May, 2013 suspending him from practice he was not afforded an opportunity to be heard and that this was not disputed by the respondent. Learned Counsel for the applicant submitted that there is a period of two years and nine months between the two rulings. They contended that there was, therefore, serious injustice and victimization of the applicant by the respondent which should justify the grant of judicial review.
Learned Counsel relied on the case of ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED v WEDNESBURY CORPORATION3 to augment their argument that the decision made on 24th May, 2013 by the respondent’s Legal Practitioners’ Committee was Wednesbury unreasonable in that no such person or Committee properly directing itself on the relevant and acting reasonably could have reached the decision that it did. They submitted that if the respondent’s Committee had properly directed itself, it would not have made such a decision when there was already a decision in place relating to the same facts, issues and parties.
It was further submitted there was failure by the Legal Practitioners’ Committee in its ruling of 24th May, 2013 to reconcile the following facts:
(i) There was no documentary evidence produced by the complainant, Gertrude Kaseko that she was in compliance with the court order of 28th September, 2007 by paying the applicant for purposes of paying into court.
(ii) That according to the observation by the Legal Practitioners’ Committee in its ruling of 16th July, 2010, it was unclear what monies the applicant may have received and for what purposes could not be reconciled with the decision of 24th May, 2013 suspending the applicant’s practicing certificate.
Learned Counsel for the applicant submitted that that observation was the reason the Committee ruled that the applicant renders an accounting statement within thirty (30) days from 16th July, 2010.
In conclusion, they submitted that from the facts of this case, this is a proper case for this court to exercise its discretion to grant an order for certiorari to quash the decision made by the respondent’s Legal Practitioners’ Committee on 24th May, 2013 suspending the applicant’s practising certificate, with costs.
The respondent filed into court on 3rd September, 2013 submissions in which learned State Counsel for the respondent submitted among other things, that judicial review is not concerned with the merits of the subject of the judicial review but with reviewing the decision making process as stated in Order 53 Rule 14(19) of the Rules of the Supreme Court, 1999 Edition. He submitted that the case of CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS4 is instructive on this point and in particular, the observation by Lord Hailsham, LC at page 143 where he stated:
“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 and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.”
Mr. Abyudi James Shonga, State Counsel submitted further that the Supreme Court of Zambia in the case of DEAN NAMULYA MUNG’OMBA & TWO OTHERS v PETER MANCHUNGWA & TWO OTHERS5 also made the same observation when the Court stated at page 21:
“Judicial review is concerned with the decision making
process. Whether the tribunal had power to act in the matter; whether they followed the procedure; whether they exceeded their jurisdiction and matters of procedural nature. Judicial process is not concerned with the merits of the decision and authorities abound on this and we may only refer to our recent decision in the case of CHILUBA v ATTORNEY-GENERAL6…”
Learned State Counsel also referred to Order 53 Rule 14(19) of the Rules of the Supreme Court, 1999 Edition which provides:
“The court will not, however, on a judicial review application
act as a “court of appeal” from the body concerned; nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body’s jurisdiction or the decision is Wednesbury unreasonable.”
It was contended by learned State Counsel that the applicant is clearly challenging the decision made by the Legal Practitioners’ Committee and that their understanding is that the applicant is asking this court to substitute the Legal Practitioners’ Committee’s decision with the court’s decision. He submitted that in so doing, the applicant has gone beyond an examination of the decision making process and strayed into the decision itself.
Mr. Shonga, State Counsel referred the court to Order 53 Rule 14(24) of the Rules of the Supreme Court, 1999 Edition which deals with the issue of sufficient interest. It provides inter alia:
“The overriding rule governing the standing of the applicant
to apply for judicial review is that the court must consider that ‘he has sufficient interest in the matter to which the application relates.’ If the applicant has a direct personal interest in the relief which he is seeking, he will very likely be considered as having a sufficient interest in the matter to which the application relates.”
He submitted that it would appear that in this case the applicant would have locus standi to bring such an application as the decision to which this application relates directly affects him.
With regard to the grounds for judicial review, learned State Counsel dealt with each one in order to demonstrate the burden placed on the applicant under any of these grounds.
With respect to the ground of want or excess of jurisdiction on the part of the Legal Practitioners’ Committee, he submitted that the starting point would be to check whether there are any provisions of law that give the Committee power to act as they did and none exist or if any exist, and the Committee acted in excess of those powers, then the applicant can succeed on this claim. He referred the court to section 13A of the Law Association of Zambia Act, Cap 31 of the Laws of Zambia which states:
“13A The Legal Practitioners’ Committee may, on its own
volition or, on the advice of the Disciplinary Committee established pursuant to section four of the Legal Practitioners’ Act, suspend, for such period as the Legal Practitioners’ Committee may determine, the practicing certificate of a practitioner to whom an application under paragraph (b) of subsection (1) of section twenty-two of that Act, relates, pending the outcome of the hearing of the case by the Disciplinary Committee.”
Mr. Shonga, State Counsel submitted that the foregoing provisions give the Legal Practitioners’ Committee power to suspend the practicing certificate of a legal practitioner. He submitted further that this power is amplified in section 22A of the Legal Practitioners’ Act, Cap 30 of the Laws of Zambia which provides:
“22A (1) Where an application under paragraph (b) of
subsection (1) of section twenty-two discloses a prima facie case of misconduct the Disciplinary Committee may advise the Practitioners’ Committee, appointed under section thirteen of the Law Association of Zambia Act, to suspend the practicing certificate of the practitioner to whom the application relates for such period as the Practitioners’ Committee may determine pending the determination of the case, if the Disciplinary Committee is satisfied that such suspension is necessary in order to safeguard the interests of the public.
(2) Notwithstanding subsection (1), the Legal Practitioners’ Committee may on its own volition, where it considers it fit, suspend, for such period as the Committee may determine, the practicing certificate of a practitioner against whom disciplinary proceedings have been instituted for misconduct and shall submit the matter to the Disciplinary Committee.”
Learned State Counsel submitted that it is clear from the foregoing provisions that the Legal Practitioners’ Committee not has power but discretion on when to exercise that power.
With respect to the applicant’s allegation in his submissions, that once the ruling of 16th July, 2010 was made, the Legal Practitioners’ Committee was functus officio and therefore lacked jurisdiction to make the decision of 24th May, 2013, he submitted that the argument is flawed and is not supported by the facts of this case. He drew the court’s attention to exhibit “SM3” in the respondent’s affidavit in opposition and he submitted that the Legal Practitioners’ Committee found the applicant guilty of having contravened certain provisions of the Legal Practitioners’ (Practice Rules). As there was insufficient information on the movement of funds, the applicant was ordered to render an account.
Mr. Shonga, State Counsel further submitted that the facts of the present case bears some similarity to the case of Re: A SOLICITOR7. In that case, the Disciplinary Committee asked the solicitor against whom allegations had been made to render an account on more than one occasion. It was only on the third occasion after which the Committee, still being dissatisfied, made a decision to suspend the solicitor from practice.
In the instant case, learned State Counsel submitted that a proper understanding of the Committee’s request for the applicant to render an account did not suggest that the matter would end there. He submitted further that the request for an account to be rendered first, was for the purpose of forming a reasoned and informative ruling by the Committee.
It was also the respondent’s contention through learned State Counsel that the applicant’s assertion that the principle of res judicata has any application in this case is erroneous. He contended further that a proper reading of the ruling of 16th July, 2010 clearly shows that the Legal Practitioners’ Committee did not make a final decision on that day. He submitted that, therefore, the matter cannot be said to be res judicata.
Turning to the ground of error of law on the face of the record, Mr. Shonga, State Counsel submitted that the applicant has not supported the argument of an error of law such that the respondent are unable to understand how the fact of the two rulings would amount to an error of law. He submitted that the two rulings are complimentary as indicated in the first paragraph of the ruling of 24th May, 2010 which states:
“The ruling in this matter is in respect of the order made by
this Committee in its Ruling of 16th July, 2010 in which the respondent was requested to render an account.”
Further, on the applicant’s allegation that the Committee failed to comply with the rules of natural justice, it is learned State Counsel’s contention on behalf of the respondent that this ground is defeated by the applicant’s own facts in the affidavit in reply to the affidavit in opposition to the application for judicial review, in paragraph 4 which states inter alia:
“…..the meeting of the 21st November, 2008 was a full
hearing of the respondent’s Legal Practitioners’ Committee. The then Honorable Secretary Mr. Justice Chashi and other members asked a lot of questions, sought clarifications and indeed enquired into the matter in detail. I was asked a lot of questions and I responded and complied totally.”
Learned State Counsel submitted that the Legal Practitioners’ Committee was not obligated to hold another hearing after the applicant rendered an account. He fortified this by reliance on the case of Re A SOLICITOR.
Finally, he dealt with the Wednesbury principle and he submitted that the principle of Wednesbury unreasonableness is well established in the case of ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED v WEDNESBURY CORPORATION. He submitted that under this ground, for an applicant to succeed, the applicant must show that an act or decision made was so Wednesbury unreasonable such that no person or tribunal properly instructed and taking account of all relevant consideration could do or arrive at.
It was further contended that the applicant’s suspension cannot be reviewed in isolation to the manner of his suspension. Learned State Counsel submitted that the question is whether, on the facts before Court, the exercise of the power to suspend the applicant by the respondent was employed in a manner that no reasonable Committee would have exercised. He submitted that a close perusal of both rulings confirm that the Legal Practitioners’ Committee acted with much patience before deciding to suspend the applicant. Mr. Shonga, State Counsel argued that the applicant has failed to substantiate the argument of Wednesbury unreasonableness as there was no unreasonableness in the conclusions of the Legal Practitioners’ Committee’s ruling of 24th May, 2013 or the manner in which the findings were arrived at. He submitted therefore that this ground must also fail.
In conclusion, learned State Counsel submitted that on the strength of the foregoing arguments that the applicant has failed to satisfy the grounds for which a grant of the orders prayed for herein would be made. He, accordingly prayed that the applicant’s application be dismissed with costs.
On 9th September, 2013, the applicant’s submissions in reply were filed into court. Therein, learned Counsel for the applicant started off by submitting that there is a deliberate attempt by the respondent to mislead the court that the focal point of the complaint was acting in a manner amounting to professional misconduct in relation to the client’s funds. They argued that that generalized position is not the focal point and that the respondent glossed over the focal point which is specifically laid down in exhibit “KBF 12” which has a summary of Gertrude Kaseko’s complaint. They restated the complaint and argued that the respondent had deliberately neglected to specify the focal point or the complaint which is that the complainant gave K38 million to the applicant’s law firm meant for payment of rentals into court and which the applicant alleged was misappropriated.
They contended further that the respondent glossed over the fact that there were two distinct and separate Legal Practitioners’ Committees which made two different rulings which were both conclusive. The latter one was made two years nine months later. They further contended that the respondent was, therefore, misleading this court by submitting that the ruling of 16th July, 2010 was inconclusive when there was no evidence to that effect as the ruling spoke for itself. Learned counsel for the applicant submitted that the respondent’s contention that the Legal Practitioners’ Committee after considering the account in a ruling dated 24th May, 2013 suspended the applicant’s practicing certificate implied that the 2010 was continuously sitting, when that was not the case.
Further submitting on error of law on the face of the record, learned Counsel for the applicant argued that the two rulings are not complimentary. They submitted that there is no such legal situation where there are two contradictory rulings in respect of the same parties, same issues and facts made two years nine months in between each other. They relied on the cease of RAHIM OBAID v THE PEOPLE8 and O NADHIM QUASMI v THE PEOPLE9 where it was held that where an application had been considered by one judge, another judge of that court has no jurisdiction to entertain a fresh application for bail. Even in the case of Re KRAY, Re KRAY, Re SMITH10, it was held that where the application was considered by one judge, another judge is not competent to deal with the application again. Learned Counsel for the applicant submitted that these applications are parallel to the two rulings made by the respondent’s Legal Practitioners’ Committee on 16th July, 2010 and 24th May, 2013 on the same facts, issues and parties.
They submitted further that the case of Re: A SOLICITOR which was cited by the respondent was not relevant to these proceedings because the order against the Solicitor was simply to render an account with no background information given on why the Solicitor had to render an account.
They further argued that the respondent’s argument raised in response to the applicant’s allegation of the respondent’s Committee’s failure to comply with the rules of natural justice, does not make sense. They noted that the respondent’s submissions were that the Committee was not obligated to hold another meeting after the applicant had rendered an account. They submitted that if that was the case, the appellant was therefore not afforded an opportunity to be heard in respect of a matter which had been closed two years nine months before. They, therefore, wondered where the Silas Mambwe convened Committee drew its powers to make the decision to suspend the applicant who was not afforded an opportunity to be heard.
With respect to the Wednesbury unreasonableness principle, learned Counsel for the applicant submitted that this issue had been extensively discussed in the applicant’s submissions. They submitted that the argument that the respondent’s Committee’s decision of 24th May, 2013 was Wednesbury unreasonable could not be over-emphasized.
They concluded by submitting that the applicant had proved on a balance of probabilities that the Legal Practitioners’ Committee that made a decision on 24th May, 2013 lacked jurisdiction, exceeded its jurisdiction, failed to observe the ruling of natural justice in that it did not afford the applicant the opportunity to be heard, was Wednesbury unreasonable and that there was an error of law on the face of the record.
I have carefully considered the application for judicial review, the affidavit evidence, submissions and authorities which have been of great assistance. The facts upon which the reliefs are sought by the applicant have already been elaborately stated and I, therefore need not restate them. The grounds relied upon to support the claims for which the reliefs are sought have also been sufficiently stated and I will deal with them later. However, before proceeding to consider the merits of the application for judicial review, I would like to make brief reference to the basic principles underlying the process of judicial review. Under Order 53, Rule 14(19) of the Supreme Court Rules, 1999 Edition at page 902, the learned authors dealt with the nature and scope of judicial review which constitute the basic principles to be considered in granting the remedy of judicial review. They stated 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.
In CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS at page 143 Lord Hailsham L. C. summed the position as follows:
“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 and that it is no part of that purpose to substitute the opinion of the Judiciary or of individual Judges for that of the authority constituted by law to decide the matters in question.”
The learned authors stated further that a decision of an inferior court or a public authority may be quashed (by an order of certiorari on an application for judicial review) where that court or authority acted without jurisdiction or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where those rules are applicable or where there is an error of law on the face of the record, or the decision is unreasonable in the Wednesbury sense.
They stated further that the court will not, however, on a judicial review application act as a “court of appeal” from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that lawful authority is not abused by unfair treatment.
From the aforestated guidelines, this court will proceed to consider the respondent’s Legal Practitioners’ Committee’s decision-making process of suspending the applicant’s practising certificate on 24th May, 2013. The decision-making process has been challenged on its decision to suspend the applicant’s practicing certificate. The grounds for judicial review are premised on the following:
(i) Wednesbury unreasonableness
(ii) Lack or excess of jurisdiction
(iii) Constitution of an error of law on the face of the record; and
(iv) Failure to comply with the rules of natural justice
I will proceed to consider each ground in relation to the evidence or facts before this court and the law.
On the issue of unreasonableness or irrationality in the exercise of the power or decision-making to suspend the applicant’s practising certificate, this court has to determine whether the procedure or process used to arrive at the said decision was irrational or unreasonable as alleged by the applicant. The standard for determining irrationality or unreasonableness as a ground for judicial review was enunciated in the case of ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESBURY CORPORATION and later espoused by Lord Diplock in the case of COUNCIL OF CIVIL SERVICE UNION v MINISTER FOR CIVIL SERVICE11 when he stated:
“………… By irrationality I mean what can now be succinctly
referred to as Wednesbury unreasonableness. It applies to a decision, which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
From the affidavit evidence, the submissions and skeleton arguments, it is clear that the Legal Practitioners’ Committee of the Law Association of Zambia exercised its statutory powers under section 13A of the Law Association of Zambia Act, Cap 31 of the Laws of Zambia and section 22A of the Legal Practitioners’ Act, Cap 30 of the Laws of Zambia. What, however, has to be determined is whether the said Legal Practitioners’ Committee exercised its statutory powers rationally or reasonably in the Wednesbury sense.
In this case, the applicant alleged that the respondent’s Legal Practitioners Committee’s decision of 24th May, 2013 to suspend his practicing certificate was irrational and Wednesbury unreasonable because his disciplinary case had already been dealt with, determined and concluded by the previous Committee led by Mr. Justin Chashi when it rendered its ruling on 16th July, 2010. The evidence before this court was also to the effect that in the ruling of 16th July, 2010, the applicant was asked to render a full account of the monies he received. He rendered the said account and he was not asked for further and better particulars or clarification. The applicant not having been asked anything further on the matter considered it to have been concluded. According to the applicant’s argument when that particular Committee left office without making a further decision, the new Committee led by Mr. Silas Mambwe became functus officio and had no jurisdiction to render the ruling on 24th May, 2013.
With respect to the allegation of unreasonableness on the part of the Committee that rendered the ruling of 24th May, 2013 and suspended the applicants’ practicing certificate, the court finds that the matter had not been concluded as the account submitted by the applicant had not been considered which rendered the ruling of 16th July, 2010. The Silas Mambwe led Committee could not be said to be functus officio in relation to the matter. In making the ruling of 24th May, 2013, the Committee did not in any way act irrationally or unreasonably as they had the power to exercise that function and was a conclusion of the matter which had been pending since 16th July, 2010.
In light of the revelation of this evidence, the applicant failed to demonstrate that the Committee’s ruling was so irrational or Wednesbury unreasonable and I further find that the applicants’ hope and belief that the matter had been settled was misguided. This ground lacks merit and is accordingly dismissed.
The applicant further alleged that the respondent’s Legal Practitioners’ Committee lacked or exceeded its jurisdiction by passing the ruling of 24th May, 2013. Lack of or excess of jurisdiction entails illegality in the exercise of the powers by the decision-making process. In the case of COUNCIL OF CIVIL SERVICE UNIONS v MINISTER OF STATE FOR CIVIL SERVICE, Lord Diplock explained the meaning of illegality when he stated:
“By illegality as a ground for judicial review I mean that the
decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.”
From this definition of illegality it is clear that in order to determine the legality or illegality of the Silas Mambwe led Legal Practitioners’ Committee, this court must satisfy itself that the matter in which the said Committee rendered a ruling on 24th May, 2013 was functus officio as contended by the applicant.
The previous Justin Chashi led Legal Practitioners’ Committee in its ruling of 16th July, 2010 ordered the applicant to render an account which he did and no further action was taken and there was no evidence on whether or not the matter was concluded. However, when the Silas Mambwe led Committee assumed office a ruling was rendered on 24th May, 2013 suspending the applicant’s practicing certificate. The question that arises is the spirit in which this decision was made. If the matter had earlier been concluded by the previous Justin Chashi led Committee then the matter can be said to be functus officio as alleged by the applicant. However, if it was not concluded or exhausted then the Committee cannot be said to have acted ultra vires or illegally.
In this case, after considering the account rendered in the correspondence from the applicant dated 10th August, 2010, a ruling was rendered on the 24th May, 2013, wherein the applicant was suspended from practice and the matter was referred to the Disciplinary Committee. From the foregoing it was clear that the applicant had not been unfairly treated as alleged but that the normal administrative procedures had not been exhausted as the Disciplinary Committee had not yet determined the matter.
In his affidavit in reply to the respondent’s affidavit in opposition, the applicant confirmed that the meeting of 21st November, 2008 was a full meeting of the respondent’s Legal Practitioners’ Committee. He further deposed that the Committee asked a lot of questions, sought clarifications, enquired into the matter in detail and that he answered and complied with them totally.
In respect of the ground of want or excess of jurisdiction on the part of the Legal Practitioners’ Committee, learned State Counsel relied on section 13A of the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia which empowered the said Committee to suspend the applicants practicing certificate. This power is further amplified in section 22A of the Legal Practitioners’ Act, Chapter 30 of the Laws of Zambia which also gives the Committee the discretion of when to exercise that power. In the ruling of 16th July, 2010, the Committee found the applicant wanting as indicated in exhibit “SM3” that there was insufficient information on the movement of funds from the complainant to the applicant. State Counsel relied on the case of Re: A SOLICITOR to fortify his submission.
Therefore, based on sections 13A and 22A of the Acts referred to, I find that the Legal Practitioners’ Committee did not in any way exceed its jurisdiction when it made a ruling on 24th May, 2013 to suspend the applicant’s practicing certificate. Consequently, this ground lacks merit and also accordingly fails.
The third ground for judicial review relied on by the applicant is that of constitution of an error of law on the face of the record. In relation to this case, the applicant argued that the two rulings, namely that of 16th July, 2010 and 24th May, 2013 are not complimentary but contradictory even though they are in respect of the same parties, same issues and facts and made within two years nine months of each other.
Under Order 53 Rule 14(29) of the Rules of the Supreme Court (1999) judicial review will lie where there is an error of law on the face of the record. According to the learned authors of the Supreme Court Practice, 1999 Edition, Volume 1 at page 907:
“Recently what constitutes the ‘record’ has been widely
interpreted; it is not confined to the formal order, but extends to the reasoned decision given by the Judge in his written or oral judgment (see: R v CROWN COURT AT KNIGHTSBRIDGE, ex.p. INTERNATIONAL SPORTING CLUB (LONDON) LTD12, applying R v NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL13).”
In the present case, learned State Counsel for the respondent submitted that the purpose of the Committee asking the applicant to submit an account was so that the Committee could form an informative and reasoned ruling. On the ground of constitution of an error of law on the face of the record, it could not be said that the two rulings were contradictory, but that they were complimentary as the second ruling of 24th May, 2013 referred to the earlier ruling of 16th July, 2010 as indicated below:
“The Ruling in this matter is in respect of the order made by this Committee in its ruling of 16th July, 2010 in which the respondent was requested to render an account.”
In addition to that the Silas Mambwe led Legal Practitioners’ Committee was not under any obligation to hold another hearing after the applicant rendered an account. I further accept State Counsel’s contention that the doctrine of res judicata is not applicable in this case since the matter had not been finally settled as the ruling of 24th May, 2013 did not relate to another complaint but it was merely a conclusion of the complaint that had been made earlier. It is, therefore, clear that the allegation of constitution of error of law on the face of the record is unfounded and has not been proved by the applicant. The applicant had been asked to render an account of the monies paid by the complainant which he did and the ruling of 24th May, 2013 was a conclusion of the matter which had been pending since 16th July, 2010.
In the circumstances, therefore, this ground for judicial review also lacks merit and accordingly fails.
I finally turn to the applicant’s fourth ground for judicial review that the respondent’s Legal Practitioners’ Committee that made the ruling of 24th May, 2013 by not affording the applicant an opportunity to be heard before rendering its ruling, failed to comply with the rules of natural justice. This failure to comply with the rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision is also referred to as “procedural impropriety.” It also covers failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
With reference to procedural fairness, the learned authors of JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, De Smith Woolf and Jowell at page 410, paragraphs 8 – 21 and 8 – 22 stated as follows:
“There is a presumption that procedural fairness is required
wherever the exercise of a power adversely affects an individual’s right protected by common law or created by statute. These include rights in property, personal liberty, status and immunity from penalties and other fiscal imposition. The duty to afford procedural fairness is not, however, limited to the protection of legal rights in the strict sense. It also applies to more general interests of which the interest in pursuing a livelihood and personal reputation have received particular recognition.”
Further in the case of ZINKA v ATTORNEY GENERAL14, the Supreme Court of Zambia also made the following observation in relation to the right to be heard:
“The principles of natural justice must be observed by the
courts, tribunal, arbitrators and all persons and bodies having the duty to act judicially except where their application is excluded expressly or by necessary implication ………………….
………………………………………………………………………………………………………………………………………………………………
however, a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where a decision entails the determination of disputed question of law and fact………..”
In the instant case the applicants allegation that the Committee failed to comply with the rules of natural justice was countered by learned State Counsels’ argument that the Legal Practitioners’ Committee convened a meeting on the 28th November, 2008 which was attended by both the applicant and the complainant according to the applicant’s own admission in the affidavit in reply to the affidavit in opposition under paragraph four. The complainant chose to rely on her written complaint while the applicant adopted the same course save to add some comments to a receipt that the complainant had presented. The applicant stated therein that he was asked a lot of questions to which he responded and complied totally. Both parties having been heard by the first Committee, it follows therefore that the Committee that rendered the ruling of 24th May, 2013 merely considered the account submitted by the applicant and was under no obligation to hold another hearing.
From the foregoing, this court finds that the Committee complied with the rules of natural justice as the applicant was afforded an opportunity to be heard according to his own admission. Therefore, the Silas Mambwe led Legal Practitioners’ Committee was merely finalising a pending matter before the Committee. If they felt that more information was required from the applicant, they would have contacted him to seek further clarification before making a ruling.
From the foregoing, I find that there was no procedural impropriety in the manner in which the two Committees dealt with this matter. Therefore, this ground also lacks merit and accordingly fails.
From the conclusion of the ruling of 24th May, 2013, I am of the considered view that this application by the applicant for judicial review was prematurely brought to court as the applicant had not exhausted all the administrative channels available to him. The Legal Practitioners’ Committee in its ruling of 24th May, 2013 referred the matter to the Disciplinary Committee after suspending the applicant’s practicing certificate for further action. That being the position, the applicant should have appealed against the decision of the Legal Practitioners’ Committee or waited for the outcome of the Disciplinary Committee before coming to court for judicial review.
In conclusion, based on the affidavit evidence, submissions, authorities cited and the court’s consideration and evaluation of the application for judicial review I make the following observations in relation to the grounds upon which the relief of the order of certiorari is sought:
(i) The contents of grounds (1) (4) and (5) deal with the merits of the decision. As earlier submitted by learned State Counsel, Mr. Abyudi James Shonga, the Supreme Court of Zambia in the case of DEAN NAMULYA MUNG’OMBA & 2 OTHERS v PETER MACHUNGWA & 2 OTHERS observed that judicial review is concerned with the decision making process and not with the merits of the decision.
(ii) The contents of grounds (2) (3) (6) (7) and (8) have been sufficiently addressed by the court suffice to state that based on the evidence before this court, I find that there was no misdirection on the part of the Legal Practitioners’ Committee when it ordered that the applicant’s practicing certificate be suspended.
I, further, find that the said Legal Practitioners’ Committee was on firm ground when it made the ruling of 24th May, 2013 as the matter was not functus officio and needed to be concluded after the applicant rendered the account.
The relief sought by the applicant is for:
“An order of certiorari to remove into this honourable court and to quash an order made by the Law Association of Zambia Legal Practitioners’ Committee on the 24th day of May, 2013 that Kelvin Fube Bwalya be suspended from practice forthwith.”
However, in view of the fact that the applicant has been unsuccessful on all the grounds for judicial review relied upon, it follows that he is not entitled to the relief sought.
The application for judicial review is accordingly dismissed with costs for the respondent. Costs to be taxed in default of agreement.
DATED this ………………….. day of April, 2014 at Lusaka.
……………………………………………
F. M. Lengalenga
JUDGE
