Bicon Zambia Limited v The Engineering Institution of Zambia (2022/HP/1157) [2023] ZMHC 76 (4 March 2023)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2022/HP/ 1157 BETWEEN: BICON ZAMBIA LIMITED AND THE ENGINEERING INSTITUTION OF ZAMBIA DEFENDANT Before the Hon. Mrs. Justice M. M. Bah- Matandala, On the 4 th day of May, 2023. For the Plaintiff Mr. J. Katabi & Mr. J. Milambo - Messrs. Dove Chambers For the Defendant: Ms. D. Nalishuwa & Mr M. Dalimita - Messrs. Musa Dudhia & Co. RULING Legislation Referred to: 1. The High Court Act, Chapter 27 of the laws of Zambia 2. Rules of the Supreme Court of England (White Book) Cases Re [erred to: 1. Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General (1995- 97) ZR 91 2 . Dean Namulya Mung'omba v Peter Machungwa (2003) ZR 17 3. Roadmix Limited and another v Fumcraft Enterprises Limited SCZ Judgment No. 41 of 2014 4. Dean Mungomba v Peter Machungwa 2003 ZR 7 R-1 5. R. v Inland Revenue Commissioners, ex p National Federation of self employed and Small Business Ltd (1982). A. C. 617, p.642. (1981)2All E. R. 1.0 INTRODUCTION 1. 1 This ruling concern two Applications; An application to Raise Preliminary Issues on Points of Law and facts made by summons dated 15th September, 2022 pursuant to 14A Rule l of the Rules of the Supreme Court of England 1965 (White Book). 1.2 The second Application is for an order to strike out Writ of Summons and Statement of Claim and Dismiss Action pursuant to Order 33 Rule 3 Rules of the Supreme Court of England 1965 (White Book) made by Summons dated 15th Sept, 2022. 2.0 BACKGROUND 2.1 The background of the matter is that the Plaintiff by a Writ of Summons dated 27 th July, 2022 sued the Defendant herein claiming the fallowing: 1. A declaration that the suspension of the Plaintiff Company is illegal; R-2 2. An Order to set aside the suspension of the Plaintiff by the Engineering Council; 3 . Damages for . inconvenience, . distress and embarrassment; 4. Mandatory injunction; 5. Interest; 6. Any other order the Court deems fit; 7. Costs. 2.2 On 15th September, 2022 the Defendant filed Summons to Raise Preliminary Issues on Points of Law and facts and for an order to strike out Writ of Summons and Statement of Claim and Dismiss Action made pursuant to Order 33 Rule 3 and 14 A (1) of the Rules of the Supreme Court 1999 Edition (White Book). 3.0 COMBINED AFFIDAVIT IN SUPPORT 3.1 In the combined Affidavit in Support of Notice of Motion to Raise Preliminary Issues and for an order to strike out Writ of Summons and Statement of Claim and Dismiss Action, deposed to by Abel Ngandu, the gist of the averment in the Affidavit in Support was that the Plaintiffs R-3 claim anses from alleged procedural impropriety on the party of the Defendant Institution, a public body, in the manner it arrived at the Decision to suspend the Plaintiff and that such actions cannot be commenced by way of Writ of Summons. 4.0 AFFIDAVIT IN OPPOSITION 4.1 The Affidavit in Opposition was sworn by Renatus Mushinge in his capacity as the Managing Director in the Plaintiff Company. 4.2 The gist of the averments in the Affidavit in Opposition was that the Plaintiff was not only dissatisfied with the decision of the Defendant to suspend it without following due procedure but also a series of actions by the Defendant leading to the illegal suspension of the Plaintiff as tabulated by the Plaintiffs Statement of claim filed on 27 th July, 2022. 4. 3 Further that the Plain tiff in this action was seeking declarations and damages that can only be brought by way of Writ of Summons. R-4 5.0 SKELETON ARGUMENTS IN SUPPORT 5.1 The gist of the argument in the Defendants Skeleton Arguments is that the Plaintiff has in its Statement of Claim pleaded that the Defendant suspended the Plaintiff from carrying out business without following the due procedure. 5.2 Further that the procedure to be noted in commencing an action calling upon the High Court to review a decision of a public body is as set out in the White Book requiring a party seeking judicial review of a public body to begin by seeking leave of court to bring Judicial Review proceedings. 5.3 Reference was made to a number of authorities including the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General (1995- 97) ZR 91 1 and that of Dean Namulya Mung'omba v Peter Machungwa (2003) ZR 172 6. 0 SKELETON ARGUMENTS IN OPPOSITION 6.1 In the Skeleton Arguments in Opposition it was submitted that the procedure for Judicial Review is only adopted R-5 where a party is inviting the High Court to review an administrative decision of a public body. 6.2 And it was submitted that in casu, the issues raised by the Plaintiff in the Statement of Claim are not merely hinging on challenging the administrative decision of the Defendant Institution but declarations and damages which claims depend on pleadings and will require viva voce evidence. 6. 3 Reference was made to the case of Roadmix Limited and another v Furncraft Enterprises Limited SCZ Judgment No. 41 of 20143 7.0 HEARING 7.1 At the hearing of the matter both parties relied on the filed documents. 7.2 In augmenting, it was submitted for the Defendant that it was not in dispute that the Defendant was a Public Body and that the Plaintiff was calling upon the Court to determine whether or not the Decision made by the Defendant to suspend the Plaintiff's membership was legal. R-6 7. 3 Further that the exercise of this Court's jurisdiction over the processes of the Defendant can only be done through Judicial Review proceedings. 7.4 Ms. Nalishuwa reiterated that the Plaintiffs also seek a relief for damages which can be granted in Judicial Review. 7. 5 Reference was made to the case of Dean Mungomba v Peter Machungwa 2003 ZR 74 and Order 53 rule 3 and 7 of the White book 7. 6 On the other hand, it was submitted for the Plaintiff that one can only resort to Judicial Review when the intention is to review the decision of a public body. 7. 7 It was further argued pursuant to Order 6 of the High Court Rules that the law prescribes on how matters ought to be commence and that a matter like one in casu ought to be commenced by way of Writ of Summons and Statement of Claim. 7.8 It was also further submitted that the Plaintiffs are seeking declarations and damages and not the review of the Defendant's decision. Reference was made to the case of Roadmix Ltd and Another (supra). R-7 7. 9 It was submitted that the nature of the claim as revealed by the pleadings require viva voce evidence to be given by both parties and not procedure under Judicial Review. 7.10 In Reply, it was submitted that the case of Roadmix is distinguishable from the present case as that case dealt with a situation where one of the reliefs sought could not fit under Notice of Motion and therefore had to be combined with other reliefs in the Writ of Summons. 7.11 It was also submitted that the reliefs under the Statement of Claim from 1 to 7 are covered under Judicial Review and further that damages and injunction can also be awarded under Judicial Review. 7.12 As regards the need to call viva voce evidence the Plaintiff argued that even in Judicial Review parties can give viva voce evidence. It was further submitted that the fact that the Plaintiff has not accepted the decision made by the Defendant, the action is one which seeks to review the decision of the Defendant. R-8 7. 13 The Court was urged to guard against the mischief that would arise if a Writ is allowed, as allowing a Writ would circumvent the leave that is obtained in Judicial Review. 8.0 THE LAW AND ANALYSIS 8.1 I have taken due consideration of the evidence on record and authorities cited in the submissions by both parties herein. 8.2 This application hinges on Order 14 A Rule 1 of the Rules of the Supreme Court of England 1965 1999 Edition (White Book) which provisions state as follows; "The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that (a) Such question is suitable for determination without a full trial of the action, and (b) Such determination will.finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein." 8.3 Furthermore, Order 33, Rule 3 provides as follows R-9 "The Court may order any question or issue ansing in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. 8.4 I have also looked at Order 6 of the High Court Rules Chapter 27 of the Laws of Zambia which provides as follows; ((Except for petitions under the Constitution and Matri monial Causes Acts and applications for writs of habeas corpus, every action in the Court shall, notwithstanding the provisions of any other written law, be commenced by writ of summons endorsed with or accompanied by a full statement of claim." 8.5 The Defendant also referred to the need for leave before commencing judicial review proceedings. Order 53 / 1-14 of the White Book provides as follows: ''The purpose of the requirement of leave is: (a) to eliminate at an early stage any applications which are either R-10 frivolous, vexatious or hopeless and (b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration (see below). 8.6 It has been argued by the Defendant that allowing this matter to proceed by Writ will deny the Defendants the need for leave provided for under Judicial review. 8. 7 I have taken time to look at the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General (supra)5 and my considered view from the provisions under Order 53 Rule 1 / 1-14 of the White Book and the holding in the case of Derrick Chitala above on the need for leave before proceeding to the main hearing is to eliminate frivolous and vexatious applications and also to determine whether a matter is fit for Judicial Review proceedings. The above requirement is necessary where the intention of the applicant is to commence matter by way of judicial review." 8.8 In the case in casu the matter commenced by Writ and my role is to determine whether the mode of commencement R-11 1s wrong; whether the matter should have been commenced by way of Judicial Review. 8. 9 It is therefore my considered view that the argument for the for leave in the application herein is misplaced. 8. 10 I have also taken time to look at cases appropriate for an application for judicial review as provided for under Order 53 1 ( 1) (2) of the White Book, which provides for the following; ''An application for - (a) an order of mandamus, prohibition or certiorari, or (b) an injunction under section 30 of the Act (m;text) restraining a person from acting in any office in which he is not entitled to act, shall be made by way of an application for judicial review in accordance with the provisions of this Order." (2) An application for a declaration or an injunction (not being an injunction mentioned in paragraph (l)(b)) may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to - R-12 (a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari, (b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and (c) all the circumstances of the case. " 8.11 It is trite that Judicial Review is meant for the control of administrative actions classified under three heads; 1. 11. illegality irrationality 111. procedural impropriety 8.12 In the case of R. v Inland Revenue Commissioners, exp National Federation of self-employed and Small Business Ltd (1982). A. C. 617, p.642. (1981)2All E. R. 93, 6 P.105 Lord Diplock stated that the requirement for judicial review is to: "prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely R-13 proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived'' 8.13 In the case in casu although the cause of action is derived from the decision of the Defendant in suspending the license of the Plaintiff's Company, it is clear from the pleadings that the Plaintiff's claim includes a contract with a third party and other decisions made from the meetings by NAPSA such as the Joint Consultative Meeting on the Report of the Independent Structural Engineering Consultancy of the failure of column TS. 8.14 With the above analysis in mind, it is my considered view that the Plain tiff is not only seeking reliefs related to illegality, irrationality or procedural impropriety but declarations and claim for damages that may affect other stakeholders hence the nature of the claim as revealed by the pleadings may not be suitable for the procedure under Judicial Review. 8.15 To this extent, having referred to the above authorities, the application herein fails for lack of merit and it is dismissed. R-14 9.0 Costs follow the event and leave to appeal is hereby granted. Dated at Lusaka, this 4 th day of May, 2023. ~ M. M. BAH-MATANDALA HIGH COURT JUDGE R-15