People v Director of Public Prosecutions ex parte Mahtani (HP 942 of 2015) [2015] ZMHC 151 (25 June 2015)

•• IN THE HIqH COURT OF ZAMBIA HOLDEN AT LUSAKA PRINCIPAL1 REGISTRY (Civil Jurisdiction) 2015/HP/0942 BETWEEN: THE PEOPLE v :' 0" - ,'_ 1'1 .~~, ~\I ~G~~:=~~c .••..2~";:.~';~lJ,.~~ REG'STHY J .....,£~. :>( 50061J»-3 .0 . flo THE DIRECTOR OF PUBLIC PROSECUTIONS ex-parte RAJAN MAHTANI (DR) , I I CORAM: SIAVWAPA J For the People: For the Applicant: Mr. L. Kalaluka (SC)Attorney General with Mr. J. Simachela Ag. Chief State Advocate Mr. J. Sangwa (SC) of Messrs Simeza with Associates Sangwa Patricia and Mr. D. M. Chakoleka of Messrs Mulenga Mwandashi Legal Practitioners and Simeza RULING Cases Referred To: 1. C a~d S Investments Limited, Ace Car Hire Limited, Sunday Maluba V The Attorney-General (2004) ZR 216. R2 2. 3. state R. V Secretary of Rukshanda BegUm (1990) C. O. D. 107 . R V Inland Revenue commissloners, self-employed and Small Business LTD (1982) AC 617 at 642 the Home Department, for , I ex-parte National Federation of ex-parte nd The Abplicant, in this case, Dr. Rajan Mahtani, was on 2 June, 2015, arrested and charged with two counts of forgery and I bonded to 29th June, 2015 for plea. By Notice of Application for Leave to apply for Judicial RevieWpursuant to Order 53 (3) of the Rules of the Supreme Court 1999 Edition and an affidavit verifying I facts filed on 19thJune, 2015, the Applicant seeks leave to move the Court for Judicial RevieW. The reliefs being sought, if leave is granted are as follows:- (a) A declaration that the institution and maintenance of the criminal prosecution of the Applicant, based on the alleged forgery of the share transfer forms of Zambezi Portland Cement is an abuse of the Court process; b) An order of certiorari to remove into the High Court for the purpose of quashing the said decision; (c) An order of prohibition prohibiting the prosecution of the Applicant on the said counts of alleged forgery of the share transfer forms of Zambezi portland Cement. RJ The Applicant has further prayed that should leave be granted, the same ~hould operate as a stay of the decision to which the application relates. The grounds upon which Judicial Review IS being sought, if leave is gninted are as follows: (al Il1egality/Constitutionallssues. Under this head, the contention is that the decision to prosecute the Applicant on charges founded on the share transfer forms of Zambezi Portland Cement is ultra-vires the provisions of Article 56(7) of the Constitution of Zambia in that the Director of Public Prosecutions is bound by the direction given by the Attorney-General pursuant to the provisions of Article 56 (7)of the Constitution. That the decision by the Director of Public Prosecutions to prosecute the Applicant on charges founded on the share transfer forms of Zambezi Portland Cement is in breach of the agreement between the Applicant and the Attorney-General. - That the decision to prosecute the Applicant on charges founded on the share transfer forms of Zambezi Portland Cement is an abuse of the powers of R4 the Director of Public Prosecutions hence ultra-vires the provlslO ns of Article 56(3) of the Constitution for not being in the interest or furtherance of the administration of justice. That the decision to prosecute the Applicant is ultra- vires the provisions of Article 56(3) of the Constitution til that the powers of the Director of Public Prosecutions have not been exercised in order to enforce law and order but in order to further other purposes and objectives. (b) Procedural Impropriety Ill1egality That there was a duty to consult the Applicant before the decision was made to prosecute him on charges founded on the share transfer forms of Zambezi Portland Cement under common law given the fact that the said decision would inevitably affect him. _ That in the alternative, if there was only a discretion or no duty on the part of the Respondent to consult the Applicant, that the Applicant, had a legitimate expectation that he would be consulted. R5 That it would be unfair and contrary to public policy to prosecute the Applicant in the light of the agreement between him and the Attorney-General. (c) Irrationality That if there was no duty to consult or any legitimate expectation on the facts, then the decision not to consult was irrational. Upo request by the Applicant to be heard pursuant to Order 53 (3) of fhe Rules of the Supreme Court, an inter-partes hearing was instead ordered by the Court and on the return date, Counsel I addressed the Court on whether or not, the notice of application for leave to lpply for Judicial Review demonstrated that there was a case fit fbr further investigation at the inter-partes hearing of the substantlve application for Judicial Review. Mr. Sangwa (SC) argued, on behalf of the Applicant, that the Applican had sufficiently demonstrated that the notice was filed timely, at he had the requisite locus standi and that there was a case fit or further investigation at a substantive Judicial Review hearing. On the other hand, the learned Attorney-General, Mr. Likando Kalaluk , (SC) argued that leave should not be granted based on the Supreme Court decision in the case of C and S Investments R6 Limited, Ace Car Hire Limited, Sunday Maluba V The Attorney- General (2004) ZR 216. I In thL case, the Supreme Court held, inter-alia, that:- "Civil proceedings cannot be used to arrest criminal . investtgations". I Besides this argument, the learned Attorney-General's submissiJns delved into issues fit for consideration at the hearing of the suJstantive application if leave is granted. The only question I need to attend to at this stage is whether the test ~ormulated in the case of R. V Secretary of State for the Home Department, ex-parte Rukshanda Begum (1990) C. O. D. I 107 has been satisfied. In that case, the Court of Appeal held that:- "The test to be applied in deciding whether to grant leave to move for Judicial Review is whether the Judge is there is a case fit for further investigation inter-partes hearing of a substantive application satisfied that at 1. full I fo Judicial Review." In Fhis case, the Applicant intends to show the Court that his prosecution on the charge laid against him is illegal and R7 unconstitutlOnal among other ,u b"~uti"l "PPUO"bou f,,'ud";or R~'= ff "OO' things, at '" ","u.d. the hearing of the lt is my considered view that the material made available to the Court, without delving into details of the matter, present an arguable case meriting the granting of the leave. That is as per Lord Dipldck in the case of R V Inland Revenue Commissioners, ex-parte National Federation of self-employed and Small Business LTD (1982) AC 617 at 642 when he put the matter thus: "Leave should be granted if, on the material then available, the Court thinks, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant". ln this case, the Applicant has raised matters which, on face value, present impropriety on the part of the State and the veracity of the bame ought to be further investigated at a hearing of the sUbstahtive application for Judicial Review. I is however, noted that the objection raised by the State to the g+nting of leave for Judicial Review,based on the case of C and S Investments and Others seems to suggest that there is no JudiCial Review permissible in criminal matters. To the contrary that lase firmly establishes the law as being that it is unlawful to I arrest criminal investigations through civilproceedings. lt does not R8 state that Judicial Review or indeed leave to apply for Judicial Reviewcannot be granted in criminal investigations or proceedings. It would Iherefore, be within the province and scope of Judicial Review to interrogate any processes and decisions relating to criminal ibvestigations without arresting the said investigations. It is further noted that in fact, what the Supreme Court in that case proJibited is the arrest of criminal investigations (emphasis I mine) and not criminal proceedings through civil proceedings. It is not in di pute that criminal matters are not shielded from the long arm of JJdicial Reviewwhere decisions are made that fall within the ambit ofIJUdiCialReview except where an appeal is the prescribed mode of challenging a decision in a criminal matter. As submitted by Mr. Sangwa, SC, the decision sought to be challeng~d by the Applicant is that . mveshgate 1m. I h' . to prosecute him and not to cJarlY, the case sought to be relied upon by the State is some what m1splaced and therefore inapplicable to the case at hand. What tJe case may be of relevance to is the further relief sought by the APJlicant that should leave be granted, it should be ordered that th leave should act as a stay of the criminal proceedings the subject of the application. R9 The analogy however, remains the same that is, if the relief is granted, i{ would not be offensive or in contumelious disregard by this Court of the doctrine of stare decisis. The fact would still remain t~at the order would not have the effect of arresting a criminal ihvestigation but a criminal trial or proceeding. In tfect, should the State still have some unfinished investigaJons to do, on the Applicant, in relation to the charge, the order of rtay would have no effect on the intended or on going investigations except that the prosecution on the same would have I I to be on hold until the Judicial Reviewis disposed of. It ii in that regard, my firm view that the essential facts leading Ito the applicable holding in the case of C and S Investments Ltd and others (Supra) are clearly different and thereforJ, distinguishable from the relevant facts upon which the holding In the said holding is being canvassed as applicable to this case. In the result, the application for leave to apply for Judicial Reviewmust succeed and I grant it accordingly. In consequence the leave shall also operate as a stay of the criminal prosecution against the Applicant on the charge laid against him so far and any that may be preferred against him in . ' RIO relation d incidental to the share forms III Zambezi Portland Cement. Par es shall bear their own costs for this application. Dat d at Lusaka this 25th day of June 2015. _1_ J. M. SIAVWAPA JUDGE