Customised Clearing and Forwarding Limited v Zambia Revenue Authority (Appeal No. 141/2003) [2014] ZMSC 129 (10 February 2014);

                                                           SCZ JUDGMENT NO. 9 OF 2014                                                                                                                             (201)

 

IN THE SUPREME COURT OF ZAMBIA             APPEAL NO. 141/2003

HOLDEN AT LUSAKA                                

(Civil Jurisdiction)

          

BETWEEN:

CUSTOMISED CLEARING AND

FORWARDING LIMITED                                                  APPELLANT

AND

ZAMBIA REVENUE AUTHORITY                                    RESPONDENT

 

Coram:     Chibesakunda, Ag. CJ, Chibomba, JS and Lisimba, Ag. JS, On 5^thMay, 2013 and 11^th February, 2014

 

For the Appellant:                            Mrs. B. B. Kearns of K.B.F and Partners

 

Chibesakunda, Acting CJ., delivered the Judgment of the Court.

Cases referred to:

1. Fredrick Jacob Titus Chiluba v. Attorney-General, Appeal No. 125 of 2002;
2. Associated Provisional Picture House Limited v. Wednesbury Corporation (1948) KB 223;
3.                                                                                                            
4. Derrick Chitala (Secretary of the Zambia Democratic Congress) v. Attorney-General, SCZ Judgment No. 14 of 1995;
5. R v. Halifax Ex parte Robinson (1912) 76 JP 233;
6. Kanda v. Government of Malaya (1965) AC 322 at 377;
7. R v. Commissioner for Racial Equality Ex parte Hillingdon LBC (1982) AC 779;
8. Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935;
9. Zinka v. The Attorney-General (1990-1992) ZR 73;
10. R v. Secretary of State for Transport, Ex parte Pegasus Holdings (London) Limited and Another (1989) 2 All ER 481;
11. New Plast Industries v. The Commissioner of Lands and the Attorney-General SCZ Judgment No. 8 of 2001;
12. Malloch v. Aberdeen Corporation (1971) 2 All ER 1278; and
13. R v. Secretary of State for the Home Department, Ex parte Mughal (1973) 3 All ER 796.

Legislation and other Works Referred to:

1. The Customs and Excise Act, Chapter 322 of the Laws of Zambia;
2. Customs and Excise (General) Regulations, Statutory Instrument No. 54 of 2000;
3. The Rules of the Supreme Court, 1999 Edition; and
4. The Halsbury’s Laws of England (4^th Edition), 2001, Reissue, Volume 1(1).

This is an appeal against a judgment of the High Court, delivered on 30^th December, 2002, following an application by the Appellant for judicial review of a decision of the Respondent.

 

                                                                                       (203)

The Notice of Application for leave to apply for Judicial Review and the supporting Affidavits reveal that the application for judicial review was prompted by a decision of the Respondent, made on or about 11^th May, 2001, to suspend the Appellant’s Clearing and Forwarding Agents Licence Number 000277 and the subsequent decision, on or about the 31^st May, 2001, to levy a penalty of K46, 787,601.52 against the Appellant.

The parties filed a ‘Statement of facts and issues for trial without pleadings agreed by the parties’ (see pages 106-107). They agreed that the facts were as depicted in the Notice of Application for leave to apply for judicial review. The agreed facts were as follows:

1. The applicant is a duly licenced clearing and forwarding agent, licenced pursuant to the Customs and Excise Act, vide copy of the licence on page 2 of the applicant’s bundle of documents.
2. The applicant, Customised Clearing and Forwarding Limited, was engaged by a carrier to process the customs documentation of the main importer.
3. The applicant, had sight of and prepared the following documentation (shown on pages 3, 4 and 5 of the Bundle of Documents):

• The Road manifest;
• Consignment Delivery Note; and

                                                                            (204)

• Customs and Excise Declaration Form (Bill of Entry).

1. The driver employed by the carrier also had on board a hidden consignment of mixed alcohol beverages, in total 600 boxes, which were subsequently discovered upon a search of the containerized vehicle by the officers of the Authority.
2. The driver employed by the carrier admitted to having hidden the consignment for and on behalf of a third party.
3. The driver was not acting in concert with his employers or the applicant.

The statement of facts and issues contained a summary of the matters to be determined by the learned trial Judge as follows:

1. Whether there was a duty of care on the part of the Respondent to comply with the Regulations and Statutory provisions set out in the Customs and Excise Act Cap 322 of the Laws of the Republic of Zambia and, in exercising such duty, to do so without bias against the Applicant.
2. Whether the Respondent had a duty to notify and/or disclose to the Applicant the grounds upon which their investigations or subsequent investigations were premised and not to prejudice the Applicant by issuing

                                                                                     (205)

prior press statements of the impending investigations before formally notifying the Applicant.

1. Whether in the alternative, if there was no duty upon the Respondent to comply with the aforementioned Statutory provisions or to disclose the grounds of the investigation or the decision to the Applicant, the fact that the carrier/importer’s driver confessed to the Respondent’s officers to the offence of concealing and smuggling the said undeclared alcohol into the Republic of Zambia contrary to inter alia section 149 (b) of the Customs and Excise Act prior to any action being taken against the Applicant, clearly demonstrated the irrationality and unreasonableness of the Respondent’s action.

After considering the agreed facts and the submissions by Counsel for both parties, the learned trial Judge held that she did not find any evidence to show that the Appellant was not allowed to verify what was on the truck. That the Appellant made a choice to fill in the bill of entry in the manner they did and they should, therefore, face the consequences of their actions. The learned trial Judge also held that the Respondent was far from being irrational or unreasonable, in the circumstances of the case. Accordingly, the trial Court dismissed the Appellant’s case with costs.

 

                                                                                       (206)

It is against that judgment that the Appellant has appealed to this Court raising the following grounds of appeal:

1. That the Learned Trial Court misdirected itself in both law and fact as to the construction and interpretation of section 8 of the Customs and Excise Act Cap 322 of the Laws of the Republic of Zambia (hereinafter called “the Act”) in holding that the Appellant had an opportunity and authority to inspect the sealed container in issue.
2. That the Learned Trial Court in its ruling erred in law in holding that the conduct of the Respondent’s officer, Mr. Chanda was not tantamount to pre-judging the culpability of the Appellant and in doing so the Respondent actions were not unreasonable and biased against the Appellant by issuing statements in the national print media prior to notifying the Appellant.
3. That the Learned Trial Court erred in its ruling by holding that the Respondent’s conduct of placing the vehicle in issue under surveillance prior to entering the Republic of Zambia, accepting the driver’s confession for smuggling contraband, and then holding the Appellant liable for misdeclaration pursuant to the provisions of the Act was not irrational and unreasonable and did not prejudice the Appellant’s rights.

 

                                                                                      (207)

1. That the Learned Trial Court erred in its ruling in holding that the Appellants were not denied their rights to natural justice by the conduct of the Respondent.
2. That the Learned Trial Court was misled by the Respondent as to the provisions of sections 34 and 37 of the Act and misdirected itself in fact and law in holding that the mere payment of a penalty in respect of the commission of an alleged offence constituted acceptance of liability, as such payment was made under protest.

In support of the foregoing grounds of appeal, Counsel for the Appellant, Mrs. Bibiyana Bulaya Kearns, entirely relied on her filed written heads of argument.

In ground one Counsel contended that the learned trial Judge wrongly delved into the substantive merits of the decision of the Respondent when she held that the Appellant was negligent when it failed to verify the contents of the containerized vehicle prior to completing the bill of entry. According to Counsel, the position taken by the learned trial Judge was contrary to what we said in the case of Fredrick Jacob Titus Chiluba v. Attorney-General⁽¹⁾, where this Court held 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.”

 

                                                                                   (208)

Counsel further submitted that the legal obligation of making a Road Manifest Report, at the point of entry, was on the driver of the truck. That the role of the Appellant was merely to transcribe, onto the bill of entry, the details contained in the Road Manifest Report. Counsel contended, therefore, that it was unreasonable and irrational for the Respondent to hold the Appellant accountable for the false declaration. In support of these arguments, Counsel relied on sections 8, 21(1) and 140 of the Customs and Excise Act, Chapter 322 of the Laws of Zambia (hereinafter referred to as “the Act”) as well as the cases of Associated Provisional Picture House Limited v. Wednesbury Corporation⁽²⁾ and Derrick Chitala (Secretary of the Zambia Democratic Congress) v. Attorney-General⁽³⁾.

Counsel further argued that the Court below was wrong when it held that Mr. Kingsley Chanda, the Respondent’s Deputy Commissioner for Operations, did not exhibit bias when he imposed a penalty, equal to the amount of duty payable on the goods, before investigations into the allegations against the Appellant were concluded. According to Counsel, this amounted to prejudging the culpability of the Appellant. To buttress these arguments, Counsel cited the case of R v. Halifax Ex parte Robinson⁽⁴⁾.

Coming to ground two, Counsel submitted that the learned trial Judge delved into the substantive merits of the decision when she held that the Appellant made a false declaration which led to

                                                                                               (209)

the Respondent issuing a statement in a national print media. In Counsel’s view, publicizing the alleged commission of the offence by the Appellant, in a print media, before giving the Appellant a chance to be heard, was a breach of the rules of natural justice. In support of this contention, Counsel referred us to the cases of Kanda v. Government of Malaya⁽⁵⁾ and R v. Commissioner for Racial Equality Ex parte Hillingdon LBC⁽⁶⁾.

With regard to ground three, Counsel submitted that the driver of the truck, Mr. Johnwell Sichone, deposed in paragraphs 6-12 of his Affidavit that he acted alone in smuggling the contraband. (seepage 21 of the record of appeal for the said Affidavit). Counsel argued that in light of that evidence, it was a misdirection for the learned trial Judge to hold the Appellant liable for the misdeclaration. To augment his arguments, Counsel referred this Court to the case of Council of Civil Service Unions v. Minister for the Civil Service⁽⁷⁾.

As for ground four, Counsel contended that the learned trial Judge misdirected herself when she held that the Respondent acted reasonably, under the circumstances, by not following the rules of natural justice. On the authority of this Court’s decision in Zinka v. The Attorney-General⁽⁸⁾, Counsel submitted that since the Appellant’s right to livelihood was affected by the decision of the Respondent, the right to be heard was unarguable. Counsel also referred us to the case of R v. Secretary of State for Transport,

                                                                               (210)

Ex parte Pegasus Holidays (London) Limited and Another⁽⁹⁾ to augment her contention.

With regard to ground five, we have carefully studied this ground and the arguments in support thereof. It is our firm view that this ground purports to attack a submission made by Counsel for the Respondent and not a holding of the learned trial Judge. Counsel for the Appellant has referred us to page J6, lines 5-10 and lines 15-20 (page 14 of the record of appeal) as the portion containing the holdings attacked by ground five. However, a scrutiny of the said page of learned trial Judge’s judgment shows that what Counsel has attacked is a summaryof Counsel for the Respondent’s submissions in the Court below.

For the foregoing reasons, we hold that ground five must immediately fail.

In response to the submissions advanced by Counsel for the Appellant, Counsel for the Respondent, Mrs. Diana B. Goramota, entirely relied on her filed written heads of argument.

On ground one, Counsel submitted that the learned trial Judge was on firm ground when she found, as a fact, that the Appellant had an opportunity to open and verify the contents of the truck. Counsel argued that this finding of fact was properly grounded on the agreed facts filed by the parties in the Court below.

 

                                                                                         (211)

It was Counsel’s contention that the learned trial Judge did not delve into the merits of the Respondent’s decision. Counsel relied on the case of New Plast Industries v. The Commissioner of Lands and the Attorney-General⁽¹⁰⁾, in support of these arguments.

Counsel went on to submit that section 8 of the Act, which has been relied on by Counsel for the Appellant, is not applicable to the instant case because the seal in question was not placed on the containerized truck by the Respondent. That the Appellant, therefore, did not require any authority before they could break the seal and open the container.

With regard to ground two, Counsel argued that the trial Court did not err in law when it held that the publication of the story relating to the misdeclaration by the Appellant, in a national print media, did not amount to pre-judging the Appellant. Counsel contended that the article which was published in the newspaper was a mere report of the incident and was based on the actual facts of what transpired.

On the Appellant’s contention that they were not accorded an opportunity to be heard, Counsel argued that section 190(1) of the Act provides a grievance procedure that the Appellant should have followed. That under that section the Appellant had an opportunity to appeal to the Commissioner General and subsequently to the Revenue Appeals Tribunal.

                                                                                       (212)

As for the argument by Counsel for the Appellant that the fine imposed on the Appellant was unfair, Counsel for the Respondent contended that the Respondent complied with section 155 of the Act in imposing the said fine.

Coming to ground three, Counsel submitted that the learned trial Judge properly directed herself when she held that the Respondent’s conduct of placing the truck under surveillance prior to entering the Republic of Zambia, accepting the driver’s confession for smuggling the contraband and then holding the Appellant liable for the misdeclaration, was neither irrational nor unreasonable and did not prejudice the Appellant’s rights. Counsel argued that the obligations of a customs clearing agent are distinct from the duties of a customs carrier. According to Counsel, the culpability of the Appellant was simply for the false declaration and the fact that the driver confessed to having committed the offence of smuggling did not eliminate the Appellant’s liability. In support of the foregoing submissions, Counsel cited sections 34, 182, and 183 of the Act. Counsel also referred us to regulation 122 to 133 of Statutory Instrument No. 54 of 2000 as well as the Derrick Chitala⁽⁴⁾ and Wednesbury Corporation⁽²⁾ Cases to further augment her submissions.

In response to ground four, Counsel contended that the learned trial Judge was right at law when she held that the nature of the facts, constituting the misdeclaration by the Appellant, made

                                                                                               (213)

it reasonable for the Respondent to impose a fine and revoke the Appellant’s licence without following the rules of natural justice. Counsel submitted that the Respondent effected the fine, in accordance with section 155, after due investigations had been done. Counsel referred us to our decision in the Zinka Case⁽⁸⁾, in support of these submissions.

We have considered the evidence on record, the judgment appealed against and the arguments by Counsel for both parties.

We will deal with the four grounds of appeal together because they have raised interrelated issues. The issues, as we see them in this case, are as follows:

1. whether or not the decision of the Respondent to hold the Appellant accountable for the misdeclaration was unreasonable or irrational;
2. whether or not the learned trial Judge delved into the merits of the Respondent’s decision;
3. whether or not the Respondent breached the rules of natural justice when it imposed a penalty on the Appellant and suspended its Clearing Agency Licence; and
4. whether or not the imposition of a penalty, by the Respondent on the Appellant, allegedly before completing investigations, amounted to bias and prejudging the Appellant.

                                                                                  (214)

We will start with the first issue, namely, whether or not the decision of the Respondent to hold the Appellant accountable for the misdeclaration was unreasonable or irrational. We are of the firm view that the Respondent’s decision was neither unreasonable nor irrational. Counsel for the Appellant has argued that since the Respondent had put the truck under surveillance and the driver had confessed that he acted alone in concealing the contraband, it was unreasonable for the Respondent to hold the Appellant accountable for the misdeclaration.

In our view, the liability of the driver is distinct from that of the Appellant. The Appellant was not penalized for the conduct of the driver but for the false declaration of the goods contained in the truck. As a customs agent, the Appellant was required, by the Act, to perform its duties in accordance with the relevant statutory provisions that govern customs agents. So the question that we must decide on is- did the Appellant perform its duties in compliance with the Act? The learned trial Judge held, on this point, as follows:

“It has been argued by Mr. Kearns that the applicant had no opportunity and authority to inspect the ‘sealed’ vehicle. I find that this argument is not practical. I cannot believe that an agent can take the risk of filling in a bill of entry without verifying what is on the vehicle. It is only an agent who has absolute trust in the licenced carrier and

                                                                                       (215)

driver who would risk filling in the bill of entry without verification. One can say that this was probably so in this case unfortunately 600 cases of alcohol were discovered on the vehicle after inspection by the Respondent’s officers. As argued by Mr. Muuka the duty of the Applicant was not merely to routinely fill in the bill of entry but they had a duty and the right to ensure that all details included on the bill of entry were correct and accurate. I agree with Mr. Muuka’s submission that the person making the declaration has to account for the contents of the declaration and cannot after making the declaration turn around and say they were not aware of the other goods found on the vehicle because they were smuggled. The bill of entry is a legal document binding on the person who makes the declaration and if it is later discovered that a false declaration was made (as was the case in this case), the Applicant has to bear the consequences.” 

In our view, the learned trial Judge properly directed herself when she arrived at the foregoing decision. We do not see any legal justification for overturning her findings and holdings. We have painstakingly studied the obligations imposed by the Act on a customs agent. The duties of a customs agent are principally contained in sections 21(1)(b), 140, 182 and 183 of the Act. For the sake of clarity, we will reproduce these sections.

                                                                                      (216)

Section 21(1) (b) provides as follows:

“21. (1) The person in charge of any vehicle, other than a railway train, arriving in Zambia, shall-

(b) in the case of arrival by road, unless otherwise directed by an officer, proceed immediately to a customs area at that port and before unloading or in any manner disposing of such vehicle or any goods thereon or contained therein, shall deliver to the custom house at that port, a report in the prescribed form together with such other documents as may be required by the terms and conditions of any customs carriers licence issued to the owner or operator of the vehicle.”         

Section 140 is couched in the following terms:

“140.  Any person who, on or after arriving in Zambia, is questioned by an officer as to whether he has upon his person or in his possession any goods, whether dutiable or otherwise, or goods the importation of which is prohibited or restricted, and who denies that he has any such goods upon his person or in his possession, or fails to mention any dutiable, prohibited, or restricted goods which he has upon his person or in his possession, shall be guilty of an offence if such goods are discovered to be or, at the time

 

                                                                                       (217)

of denial or of the statement, to have been upon his person or in his possession.”

Section 183(1) states that-

“183. (1) An agent appointed by any master, pilot, importer, or exporter, or any person who represents himself to any officer as the agent of any master, pilot, importer, or exporter and is accepted as such by that officer, shall be liable for the fulfillment, in respect of the matter in question, of all obligations, including the payment of duty, imposed upon such master, pilot, importer, or exporter by this Act or any law relating to customs or excise.” (Emphasis ours)

It is clear from the foregoing that section 21(1) (b) imposes a duty on the person in charge of a vehicle to deliver to the customs house, a report in the prescribed form, together with other necessary documents that may be required by a customs officer. It is also incontestable that section 140 requires a person arriving in Zambia to disclose, inter alia, any dutiable goods in his or her possession.

A careful study of section 183(1) of the Act establishes that where a customs agent is engaged, the obligations created by sections 21(1) (b) and 140 must be performed by that agent.

 

                                                                                       (218)

From the foregoing, it is our considered view that the argument, by Counsel for the Appellant, that the Appellant cannot be held accountable for the obligations created by sections 21(1) (b) and 140 of the Act, is not supported by section 183 (1). In our considered opinion, the Appellant’s duty was not confined to mechanically copying the contents of the Road Manifest Report onto the bill of entry. The Act obliged the Appellant to make a truthful declaration.

For the foregoing reasons, we hold that the decision of the Respondent to hold the Appellant accountable for the false declaration was neither unreasonable nor irrational.

The second issue relates to the submission by Counsel for the Appellant that the learned trial Judge delved into the merits of the Respondent’s decision. Counsel has argued that the learned trial Judge considered the substantive merits of the Respondent’s decision when she held that the Appellant was negligent to have failed to verify the contents of the containerized vehicle and that the Appellant made a false declaration which led to the Respondent publishing the issue in a national print media.

Indeed, it is trite law, as per Order 53/14/19 of the Rules of the Supreme Court, 1999 Edition, 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

                                                                                               (219)

decision-making process itself. That it is no part of the purpose of judicial review 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.

Accordingly, the question that we have to adjudicate on is: did the learned trial Judge go into the merits of the decision of the Respondent? An analysis of the learned trial Judge’s judgment establishes that the Court below did not delve into the merits of the Respondent’s decision.

In our view, the findings and holdings of the learned trial Judge were firmly founded on facts that were agreed upon by both the Appellant and the Respondent. It is not contestable that the Appellant did not dispute the fact that they did not check the contents of the containerized truck before filling in the bill of entry. It is also beyond question that the declaration which the Appellant made, as to the contents of the containerized vehicle, did not correspond with the contents of the vehicle. As already adjudged elsewhere in this judgment, section 183(1) of the Act enjoined the Appellant to confirm the contents of the containerized truck before filling in the bill of entry.

We, therefore, do not agree with Counsel for the Appellant that the learned trial Judge considered the substantive merits of the Respondent’s decision when she held that the Appellant was

                                                                                                (220)

negligent to have failed to verify the contents of the containerized vehicle and that the Appellant made a false declaration which led to the Respondent publishing the issue in a national print media.

The third issue relates to whether or not the Respondent breached the rules of natural justice when it imposed a fine on the Appellant and suspended its Customs Agent’s Licence.

Counsel for the Appellant has argued that the Respondent breached the rules of natural justice when it issued a statement in a national print media about the Appellant’s misdeclaration, before formally notifying them about the same. Counsel has further contended that the Respondent breached the rules of natural justice when it imposed a fine against the Appellant and ultimately suspended its Customs Agent’s Licence without affording the Appellant an opportunity to be heard.

We are of the considered opinion that the Respondent did not breach the rules of natural justice as alleged by the Appellant. We agree with Counsel for the Respondent that the statement issued by the Respondent, in the newspaper, merely depicted the facts of what transpired. In fact, a study of the newspaper article in question establishes that the Respondent did not even disclose the name of the clearing agency that was responsible for the alleged misdeclaration (see page 129 of the Record of appeal).

 

                                                                                       (221)

On the suspension of the licence and imposition of a fine on the Appellant, we do not accept the submission by Counsel for the Appellant that the Respondent should have heard the Appellant before arriving at the decisions in question. We must state that it is not in all cases that the rules of natural justice apply. In this regard, the authors of the Halsbury’s Laws of England have said the following, at paragraph 96:

“The situations in which a duty to act fairly or in accordance with natural justice will arise cannot be exhaustively listed and have tended to expand as the case law has developed. In order to establish that a duty to act fairly applies to the performance of a particular function, it is no longer necessary to show that the function is analytically of a judicial character or that it involves the determination of a lis inter partes, or the determination of a personal right.

Where a discretionary power to encroach upon individual rights is exercised, factors to be taken into account in deciding what fairness requires in the exercise of the power include the nature of the interests to be affected, the circumstances in which the power falls to be exercised, and the nature of the sanctions, if any, involved.”(Emphasis ours).

                                                                                  (222)

From the foregoing, it is our considered view that apart from the clear situations, in relation to which the law, as to the application of the rules of natural justice, is already settled, in other instances regard should be had to, inter alia, the circumstances in which the power falls to be exercised. To this extent, the authors of the Halsbury’s Laws of England have outlined a number of examples of situations where the application of the rules of natural justice may be partly or wholly displaced. They have said the following, at paragraph 105:

“In a particular context, the presumption in favour of the rule may be partly or wholly displaced where compliance with it would be inconsistent with a paramount need for taking urgent preventative or remedial action; or with the interests of national security; or where disclosure of confidential but relevant information to an interested party would be materially prejudicial to the public interest or the interest of other persons; or where it is impracticable to give prior notice or an opportunity to be heard; or where an adequate substitute for a prior hearing is available; or where a hearing would clearly serve no useful purpose;….” (Emphasis ours)

The preceding extract shows that one of the circumstances in which the application of the rules of natural justice may be displaced is where a hearing would clearly serve no useful purpose.

                                                                                        (223)

Lord Reid accepted this principle in the case of Malloch v. Aberdeen Corporation⁽¹¹⁾, when he said the following, at page 1283:

“Then it was argued that to have afforded a hearing to the Appellant before dismissing him would have made no difference. If that could be clearly demonstrated it might be a good answer.”

Another factor which, in our view, may be considered in determining whether a public officer, like the Respondent’s Officer in this case, performing administrative duties, should afford a person the right to be heard, is whether or not the law pursuant to which that officer exercises his or her powers provides any procedural safeguards. In our view, where the power to decide is vested solely in that public officer, then that officer should invariably observe the audi alteram partem rule. Conversely, where the law, from which that public officer draws his or her powers, provides for other procedural safeguards, such as an appeal to a judicial or quasi-judicial body, the application of the audi alteram partem rule may be displaced. This was the consideration we took into account in the Zinka Case⁽⁸⁾ when we arrived at the decision that, but for the fact that the decision of the President had been made under a declared threatened state of emergency, the President was enjoined to give Mr. Zinka an opportunity to be heard.

                                                                                        (224)

In brief, the facts of the Zinka Case⁽⁸⁾, were that the Appellant’s trading licence was revoked in terms of the Trades Licensing (Revocation) Order, 1988, promulgated by the President under the Emergency Powers Act, Cap. 108. The Trades Licensing (Revocation) Order was enacted pursuant to section 24 of the Trades Licensing Act, Cap. 707. The Appellant was not given a hearing before his licence was revoked. Delivering the judgment of this Court, Silungwe, CJ, (as he was then), said the following, at page 79:

“It is in the President only that this power of revocation is vested. The section contains no procedure safeguards for an aggrieved party. This would appear to have been done deliberately on the part of the Legislature especially in view of the fact that s. 19 of the Act makes provision for anyone aggrieved by a decision of the licensing authority to appeal against such decision to the Minister; but no similar provision exists in relation to s. 24 to enable an aggrieved party to appeal or make representations to the revoking authority.”

Since section 24 of the Trades Licensing Act did not contain a procedural safeguard for an aggrieved party, we said that a rebuttable presumption, of the necessity to give prior notice and an opportunity to be heard, arose. We found that the presumption had not been rebutted. We, however, held that the rules of natural

                                                                                        (225)

justice were not breached because the revocation of the Appellant’s licence occurred in the context of a declared threatened state of public emergency (see the ZinkaCase⁽⁸⁾ at page 80).

We must add that what is cardinal in all situations is that the public officer, who is charged, by a statute with the responsibility of making a decision, should act honestly and fairly. 

For the above-stated reasons, it is our view that the circumstances of the instant case did not require the Respondent to adhere to the audi alteram partem rule before suspending the Appellant’s licence and imposing a penalty on it. This is so because, as already adjudged in this judgment, the Appellant did not dispute the fact that they had made a false declaration. Their only major contention, in defence, was that the blame for that should have been put on the driver. We have already ruled elsewhere in this judgment, that section 183(1) of the Act placed the obligation to disclose all goods contained in the truck on the Appellant. So hearing the Appellant, in our view, would not have changed the position in any way favourable to it. In any case, the Appellant wrote a letter to the Respondent dated 12^th April, 2001, where it gave its side of the story as to what had transpired (see pages 31-33 of the record of appeal).

In addition to the foregoing, section 190 of the Act contains a procedural safeguard where an aggrieved person can appeal to the

                                                                                               (226)

Revenue Appeals Tribunal. Subsection (1) of that section provides as follows:

“190. (1) Any person who is aggrieved by a decision or determination made by the Commissioner-General under this Act or  under any regulation or rules made under this Act, may in respect of the matters set out in subsection (2) appeal to the Tribunal in such manner and within such time as the Minister may by regulation prescribe.”

The relevant part of subsection (2) is couched in the following terms:

“(2) The Tribunal shall hear and determine appeals under this Act in respect of any of the following matters:

(d) the refusal to grant, renew or the decision to suspend or cancel a Customs Agent’s licence;” (Emphasis ours)

We, therefore, are of the view that in the circumstances of this case, the Acting Assistant Commissioner, Controls did not breach the rules of natural justice. In fact, in our view, he acted honestly and fairly.

The decision of Lord Denning, MR in R v. Secretary of State for the Home Department, Ex parte Mughal⁽¹²⁾, amplifies the principle that it is not always that the rules of natural justice should be observed in the performance of administrative functions.

                                                                                       (227)

The brief facts of that case were that on 29^th March, 1973, the Applicant arrived at Manchester Airport on a flight from Amsterdam. He produced a Pakistani passport, to the immigration officer, which showed that he had left the United Kingdom on 6^th November, 1972, arriving in Pakistan on the following day, and that he had left Pakistan on 28^th March, 1973. The officer was suspicious of the passport and contacted the Pakistani government representative in Bradford who had issued it, as well as the Inland Revenue and National Insurance authorities. The information supplied by those sources contradicted the story which the Applicant had told. In consequence of that information, the immigration officer was not satisfied that the Applicant had been lawfully settled in the United Kingdom before his departure for Pakistan. As a result, the immigration officer signed an order authorising his detention. The Applicant applied for a writ of habeas corpus on the ground that his detention was unlawful. The Applicant contended, inter alia, that the immigration officer had acted contrary to natural justice in failing to give him an opportunity of providing an explanation of the information given to him by the Inland Revenue and other sources. Delivering the judgment of the Court of Appeal, Lord Denning said the following, at page 802:

“Assuming that it was the duty of Mr. Mughal to satisfy the immigration officer that he was lawfully settled here,

                                                                                       (228)

counsel for Mr. Mughal said that the immigration officer, in his examination, had not complied with the requirements of natural justice. In the first place, counsel suggested that the immigration officer, when he got reports which were adverse to Mr. Mughal—that is, the report from the Pakistani government representative about the passport, and the report from the Inland Revenue about his tax returns—he ought to have put those reports before Mr. Mughal and asked for his explanation of them.

I cannot accept this criticism.  An immigration officer is not a judge or a judicial officer. He has not to obey set rules of procedure. He is an administrative officer. He is engaged in administering the control of immigrants into this country. It is a most responsible and delicate task.  He is, of course, bound to act honestly and fairly, but, so long as he does so the courts cannot and should not interfere.”

Taking a leaf from Lord Denning’s decision, we are of the firm view that, in the circumstances of this case, it was sufficient for the Acting Assistant Commissioner, Controls, to act honestly and fairly.

With regard to the last issue, namely: whether or not the imposition of a penalty by the Respondent, on the Appellant,

                                                                                              (229)

allegedly, before completing investigations amounted to bias and prejudging the Appellant, we are of the considered view that it did not. We do not agree with the submission by Counsel for the Appellant that the fine was imposed before investigations had been done. From the record, we do not see any evidence to support this contention. What the record of appeal shows is that the Appellant was initially asked to pay a deposit of K46, 787, 601 on 22^nd May, 2001 (see page 36 of the record of appeal). The actual imposition of the fine was communicated to the Appellant on 31^st May, 2001 (see page 39 of the record of appeal). However, before the imposition of the fine, the Appellant had written a letter dated 12^th April, 2001, in which it made representations to the Respondent and demanded the immediate reinstatement of its licence (see page 31 of the record of appeal).

The above clearly shows that the imposition of the fine was done after the Appellant had made representations to the Respondent demanding the reinstatement of their licence. It is our view, therefore, that the argument by Counsel for the Appellant that the fine was imposed before investigations were conducted is unsustainable. In any case, we do not see any unfairness or bias in the manner the fine was imposed. The Respondent imposed the very minimum amount permitted by the Act. Section 155 (2) of the Act provides for a fine of up to treble the customs value plus the duty payable for the goods which may be the subject-matter of the

                                                                                               (230)

offence. The Respondent imposed ‘a minimum fine equivalent to 100% of all taxes that were payable on the quantity of beer that was not declared’ (see page 39 of the record of appeal).

On the totality of the issues, we find no merit in this appeal. We dismiss all the grounds of appeal with costs to be taxed in default of agreement.

 

 

 

……….……………………..

                               L. P. CHIBESAKUNDA

 ACTING CHIEF JUSTICE

 

 

 

 

………………………………..                           …………………………………   

H. CHIBOMBA                                    M. LISIMBA

SUPREME COURT JUDGE                 SUPREME COURT JUDGE