Elnac Investments Limited and Anor v The Attorney General (2022/HP/ 1461) [2022] ZMHC 44 (20 December 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE PRI NCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2022 /HP/ 1461 IN THE MATTER OF: ORDER 53 OF THE RULES OF THE SUPREME COURT 1999 EDITION (WHITE BOOK) AND IN THE MATTER OF: AND IN THE MATTER OF: _,-_ .... -~._-0--:---............. _,. -\ C ou,,' I r. ( ~ \ -·•· \\\:.' ;.,,- • • . : - - -• - - : - - - . • r -:- .1 • -~· · .• • " I ,•. • '·~ . . ·, . 1 -.., • •• ,. .... .. . SECTION-·' 7 ; ff) (a~+i(lf).1.~F. T~ ·ZAMBIA WILDLIFE .. . ACT NOl\'il .. ~OF,-~015, , · .. , , • .. r;;11ut·! ' .. . . ' -· ·• ---'-· b,..ci..,.,,.,1 .-.1~ 1 a/) ,r:-·/·..,._ \ .... fl- i ~ \ ·-....... ;:·,_ r?EGIS TRY -- ---···) r / THE DECISIO. Jl:i~~)'.' i1fi9''. U·ST, 2022, BY THE MINISTRY OF TOURi'S1. VI (MoT) THROUGH THE DEPARTMENT OF NATIONAL PARKS AND WILDLIFE (DNPW) TO FLOAT A TENDER FOR THE GRANTING OF SAFARI/HUNTING CONCESSIONS IN 24 HUNTING BLOCKS IN VARIOUS GAME MANAGEMENT AREAS (GMAs) AND IN THE MATTER OF: THE DECISION BY THE MINISTRY OF TOURISM THROUGH THE DEPARTMENT OF NATIONAL PARKS AND WILDLIFE OF 2ND SEPTEMBER, 2022 TO ISSUE AN INVITATION TO THE PUBLIC FOR ISSUANCE OF RESIDENT AND BONAFIDE HUNTING LICENCES FOR THE 2022 HUNTING SEASON BETWEEN: ELNAC I NVESTMENTS LIMITED MFUMU FARMS LIMITED AND 1 ST APPLICANT 2ND APPLICANT THE ATTORNEY GENERAL RESPONDENT JUDGMENT CASES R EFERRED TO: l. Fred erick Jacob Titus Chiluba v Attorney General (2003) ZR 2. Nyampala SAFARIS (Z) Limited & Four Others v Zambia Wildlife Authority SCZ Judgm.ent No. 6 of 2004 J1 3. Khalid Muhammed v. Attorney General and Another (1982) ZR 4. Council for Civil Service Unions and Others v Minister for the Civil Service ( 1 984) 3 ALL ER 935 5. Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General (1995-97) ZR 91 6. Andreas Panani v. Attorney General (2010) ZR 73 Volume 1 7. Doody v. Secretary of State for the Home Department) (1993) 3 ALLER 92 8. North Western Energy Company Limited v. The Energy Regulation Board (2011) ZMHC 76 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1965, 1999 Edition, White Book 2. The Zambia Wildlife Act, No.14 of 2015 This a pplication \:vas commenced by way of judicial review pursuant to Orde r 53 of the Rules of the Supreme Court of England , 1965, 1999 edition, White Book. DECISIONS 1. The d ecision made in August, 2022, by the Department of National Parks and Wildlife to float the Tender for the granting of Safari Hunting/Photographic Tourism concessions in 24 Hunting Blocks in various Game Management Areas (GMAs). 2 . The decision by the Department of National Parks and Wildlife of 2 nd September, 2022, to issue an invitation to the public for the issuance of resident and bona fide licences for the 2022 Hunting season. J2 RELIEFS SOUGHT: (a) An Order of Certiorari to remove in the High Court and quash the said decision by the Department of National Parks and Wildlife to proceed with the Tender process under Tender No. MoT/NCS/001/2022 and to remove in the High Court and quash the decision of 2nd September, 2022, to issue an invitation to the public for the issuance of Resident and Bonafide Hunting Licences for the 2022, Hunting Season; (b) An Order of Prohibition to prevent the Respondent through the Department of National Parks and Wildlife from proceeding or continuing with the Tender process under Tender No . MoT/NCS/001/2022 and from proceeding or continuing to issue Resident and Bonafide Hunting Licences for 2022; (c) An Order for Mandamus to compel the Respondent through the Department of National Parks and Wildlife to discontinue the Tender process to issue Resident and Bonafide Hunting Licences for the 2022 Hunting season; (d)A declaration that the decision to float Tender No. MoT/NCS/001/2022 and to issue an invitation to the pu,blic J3 ,, l I i I I i ·, for the issuance of Resident and Bonafide Hunting Licences was illegal and null and void ab initio; (e) That the 1 s t and 2°d Applicants hereby request a hearing of this application before the Judge pursuant to Rule 3 ( 10) (a) of Order 53 of the Rules of the Supreme Court; (f) If leave is granted, a direction that such leave should operate as a stay of the decisions and further proceedings on the same pursuant to Rule 3 (10) (a) of Order 53 of the Rules of the Suprem e Court; (g) If leave is gra nted , a direction that the hearing for judicial review be expedited ; (h)An Order for costs; (i) An d that a ll necessary a nd consequent directions be given. GROUNDS UPON WHICH RELIEF IS SOUGHT (a)The decisions complained of are illegal and procedurally inappropriate owing to the fact that the Respondent through the Department of National parks and Wildlife acted ultra vires its powers. (b)The decisions complained of are arbitral, unreasonable and unfair as the same were arrived at without taking into consideration the local people and without ascertaining the J4 population of wild animals before issuing the Hunting quotas thereby making the Hunting areas vulnerable to clashes and confusion. (c) The decision to issue Resident and Bonafide Hunting Licences in the manner complained of herein is unreasonable and unfair as the imposition of 25% of gross revenue being payable to the local community as it was arrived at without consulting all the relevant stakeholders and fails to take into consideration the Outfitter's marketing, logistical and other cos ts that are incurred in operating a concession. FACTS The Applicants relied on the affidavit in support dated 20th September , 2 022, sworn by Macloud Chinsubya and James Chitakwa Chungu Jr. The brief facts of the case, according to the supporting affida vit, are that the Applicants herein are limited companies duly incorporated in the Republic of Zambia and fully Zambian owned. It was deposed that the Applicants, intending to be first time entrants in the tourism industry, obtained Tender No. MoT/NCS/001/2022 documents issued by the Respondent for the granting of Safari Hunting/Photographic Tourism Concessions in Twenty-Four (24) Hunting Blocks in various Game Management JS Areas (GMAs) as shown by copies of receipts to that effect exhibited and marked "MC/JCCl" and "MC/JCC2" respectively. It was deposed further that subsequent to the issuance of the Tender, the Respondent, on 16th September, 2022, issued addendum No.5 to the said Tender in which the hunting quota was to be shared by the hunting outfitters with the lo~al community at the rate of 25% of the gross revenue generated. That in addition to the said Tender, the Respondent placed an invitation to the public on 2 nd September, 2022, in a widely circulated d aily n ewspa per for the issuance of Resident Hunting and Bon afid e Licen ces for the 2022, hunting season whose award was by way of a ra ffl e sch eduled for 24th September, 2022. It was a lso d eposed tha t it had since come to the attention of the Applicants th a t on 17th November, 2021, the Minister of Tourism, Honourable Rodney Sikumba dissolved the statutory boards and committees under the Ministry of Tourism which boards and committees included the Zambia Tourism Agency, National Museums Board, Hostels Board of Management and Wildlife Management Licensing Committee (WMLC). The Applicants deposed that they have been reliably advised by Counsel that under the Zambia Wildlife Act No . 14 of 2015, the only J6 organ mandated by law to deal with matters relating to issuance, revocation and cancellation of licences was the Wildlife Management Licencing Committee (WMLC). That the Applicants have been advised by officials from the Ministry of Tourism that the WMLC has not been reconstituted and that there is no committee in place to date. The Applicants deposed that they have been advised by Counsel that the Respondent through the Department (Q of National Parks and Wildlife therefore acted ultra vires its power when it issued the Tender for the granting of Hunting/ Photogra phic Tourism Concessions under No. MoT/NCS/001 /2022 a nd when it issued invitations for Resident a n d Bon a fi de Licen ces. It was also deposed th a t a perusal of the document for Tender No. MoT /NCS/001 / 2 022 revealed anomalies especially when looked at in r elation to previous tenders such as ZW /ORD/ 003 / 14 and MTA/SP/001/20 a s shown by exhibits marked "MC/JCC6" "MC/ JCC8". Further, that pnor to the floating of Tender No. MoT/NCS/001/2022, there was Tender No. MTA/SP/001/20 which was issued in 2020, and cancelled on 4 t h May, 2022, by the Permanent Secretary; Mr Evans Muhanga. That Tender No. J7 MTA/SP/001/20 wa s cancelled ostensibly on among other grounds that the latter was discriminative as it barred Zambians from participating in the industry and that Tender No. MoT/NCS/001/2022 contains conditions that no Zambian can meet as it is skewed in favour of foreign participants contrary to Government's policy. It was d eposed further that there was no quota census conduc ted on the a nima l population as there was no Licensing Committee in place and th a t despite this, the Respondent proceeded to issue invitations for both the Hunting Concessions and the Resident Hunting \vithout fo llowing la id down procedures as a consequence of which there was likely to b e an overlap between the two licencees. The Applican t a lso d eposed tha t Tender No. MoT/NCS/001/2022 provides for th e tourist outfitter to pay the local community 25% of gross revenue gen erated from the r espective concessions without taking into consider a tion the outfitter exp enses , such as marketing, logistics , s a la ries among others. Tha t this 1s disadva ntageous to the Outfitters a s they will b e una ble to make revenue to sustain their oper a tions. J8 It was deposed that the decision to float the said invitations was done in an arbitrary manner as there was no WMLC in place and no consultations with the local people. The Applicant deposed that the circumstances herein are such that the complained of decision of the Respondent is amenable to judicial r eview. Further that should the Tenders herein proceed and members of the public are awarded, the latter are likely to be prejudiced in light of the lack of validity of the eventual awards which will be lia ble to being set aside. The Applicant through Counsel also advanced skeleton arguments in support. of the application dated 20 th September, 2022. Counsel s ubmitted therein th a t the Respondent caused to be advertised in a d a ily n ewspaper of wide circulation an invitation for bids for the granting of Safari /Photographic Tourism Concessions in 24 Hunting Blocks in various Ga m e Management Areas (GMAs) under Tender No . MoT/NCS/001/2022 sometime in August, 2022. That on 2 nd September, 2022 , the Respondent issued a public notice to the effect that the Department of National Parks and Wildlife was inviting applications for the granting of Hunting Licences in various GMAs. Counsel stated that the Applicant being dissatisfied with the decisions aforementioned filed this a pplicat ion. J9 Counsel went on to state that the Applicants contention is based on the provisions of the Wildlife Act No.14 of 2015, which at Section 7(l)(a)-(f) established the WMLC with the authority to deal with licences and that the Act does not provide for any other committee or organ to deal with licences, permits and certificates. It was Counsel's submission that the WMLC was dissolved by the Minister of Tourism on 17th November, 2021, and that no committee has since been constituted or appointed to date. That the notices complained of were both issued after the dissolution of the WMLC which entails that whichever organ of the Respondent m ade the d ecisions to invite the public to Tender for concessions and/ or licen ces , doe s not h a ve the authority to do so. Counsel m ade refere n ce to the cases of Frederick Jacob Titus Chiluba v Attorney General (2003) ZR 153 1 and of Nyampala SAFARIS (Z) Limited & Four Others v Zambia Wildlife Authority SCZ Judgment No.6 of 2004 2 a nd submitted that where an administrative body or person exercising his/her discretion oversteps their a uthority, they are said to have acted ultra vires their powers in which event the decision made at the time is a1nenable to judicial review. Jl O Leave to commence judicial review proceedings was granted on 28 th September, 2022. When the matter came up for inter parte hearing on 6 th December, 2022, there was no appearance by the Respondent. Counsel for the Applicants was present and he submitted that the Respondent was duly ser;ved with the affidavit in support of e~ parte order for leave to apply for judicial review, the statement, applicants list of authorities and skeleton arguments and the order, on 3 rd October, 2022, as evidenced by the affidavit of service filed into court on 20th September, 2022. That to date, there is no affidavit in opposition that has bee n served on th e Applicants. Counsel proceeded a nd submitted that this was the Applicants' application for judicia l review in relation to the decision made by the Minister of Tourism through the Department of National Parks and Wildlife d ated August, 2022, to float a Tender for the granting of safaris and concessions in 24 Hunting Blocks in various Game Management Areas a nd of the decision of the Minister of Tourism dated 2 nd September, 2022, to issue an invitation to the public for an issuance of Resident and Bonafide Hunting licences for the 2022 hunting season. Counsel stated that the application was premised on Order 53 of the White Book and relies on Section Jll 7( 1 ){a)-(f) of the Wildlife Act. Counsel stated that he would entirely rely on the affidavit in support filed on 20th September, 2022, the affidavit verifying facts, statement on application to apply for judicial review as well as the Applicants' list of authorities and skeleton arguments of the same date as they set out the grounds and relief s sought fully. FINDINGS I h ave carefully considered the affidavit evidence as well as the list of authorities and skeleton arguments on record. I have noted that the State did not file a n a ffidavit in opposition to this application n either did th ey attend the proceedings hereto. That is unfortunate as they could h ave s h ed more light on the issues raised by the Applicants in this a pplication for judicial review. Be that as it may it is trite that the mere failure of the defendant's defence does not entitle the plaintiff to a judgment in his favour , as stated in the case of Khalid Muhammed v. Attorney General and Another ( 1982) ZR 49 , wherein the court stated that. "A Plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does no; entitle him to judgment". J12 It is settled law that the grounds upon which an administrative action can be subject to control under judicial review are illegality, irrationality and procedural impropriety. Lord Diplock, in the case of Council for Civil Service Unions and Others v Minister for the Civil Service (1984) 3 . ALL ER 9354 which was cited with approval in the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney General ( 1995-97) ZR 91 , i expounded on the three grounds as follows: "Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety" .... 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. Whether he has or not is par excellent a justifiable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednsbury Corporation (1948) I K. B 223. 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. Whether a decision falls within this category is a J13 question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. the I have described third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also 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." Further, Order 53 / 14 / 19 of the White Book, 1999 edition, provides for the purpose of judicial review proceedings as follows: "The remedy of the 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 other wo rd ~, the court in a judicial review action is not concerned with the merits of the decision complained of but rather (( considers the legality, rationality and procedural fairness of a decision made by a public body. The Applicants have complained against the following decisions made by the Respondent through the Department of National Parks and Wildlife: 1. The decision made in August, 2022 to float the Tender for the granting of Safari Hunting/Photographic tourism J14 concessions 111 24 Hunting Blocks 1n various Game Management Areas (GMAs); and 2. The decision to issue an invitation to the public for the issuance of resident and bonafide licences for the 2022 Hunting season dated 2 nd September, 2022. ILLEGALITY The first ground upon which the reliefs are sought herein is that ((t the decisions complained of are illegal and that there is procedural impropriety owing to the fact that the Respondent through the Departmen t of Na tional Parks and Wildlife acted ultra vires its powers . In the Applican ts ' s keleton arguments, the Applicants submitted tha t section 7 (l)(a )-(f) of the Act establishes the Wildlife Managem ent Licensing Committee (the Committee) and confers the .( Committee with the authority to issue licences. Counsel proceeded to contend that the Act does not provide for any other committee or organ to issue licences, permits and certificates. Counsel for the Applicants further submitted that the Applicants were dissatisfied with the decisions by the Respondent to cause to be advertised in a daily newspaper of wide circulation an invita tion for bids for the granting of Safari/Photographic Tourism JlS Concessions in 24 hunting blocks in various GMAs under Tender No. MoT/NCS/001/2022 in August 2022, and the decision by the Respondent on 2nd September, 2022, to issue a public notice to the effect that the Department of National Parks and Wildlife was inviting applications for the granting of hunting licences in various GMAs. It was Counsel's contention that no body exists in the Ministry of Tourism to deal with issues of conces.sions, licences, ((( permits or certificates and that whichever organ of the Respondent made the decisions to invite the public to tender for concessions and/ or licen ces , does not have the authority to do so. A perusal of th e exhibits marked "MC/JCC4" shows that the Ministry of Touri s m issu ed a public notice for Resident and Bonafid e Hunting licen ces for the 2022, hunting season. It stated inter a lia a s follows : "NOTICE IS HEREBY GIVEN TO THE HUNTING FRATERNITY AND THE GENERAL PUBLIC THAT THE DEPARTMENT OF NATIONAL PARKS AND WILDLIFE {DNPW) INVITES APPLICATIONS FOR GRANTING OF HUNTING LICENCES IN THE FOLLOWING HUNTING BLOCKS FOUND IN GAME MANAGEMENT AREAS IN ZAMBIA." J16 In addition, exhibit marked "MC/ JCC6", the standard bidding document, shows an invitation for bids drafted as follows: FOR THE SAFARI "TENDER HUNTING/PHOTOGRAPHIC TOURISM CONCESSIONS IN TWENTY-FOUR (24) HUNTING BLOCKS IN VARIOUS GAME (GMAs}-NUMBER: MANAGEMENT MoT/NCS/001/2022 GRANTING AREAS OF (MoT) 1. The Ministry of Tourism the Department of National Parks and Wildlife (DNPW) is mandated by law to manage and conserve wildlife resources in the Republic of Zambia. Among the fu nctions of the Department is to grant Hunting Concessions in conjunction with local communities in Game Management Areas (GMAs). through 2. The Ministry now invites interested eligible firms to submit sealed bids for Tender for the granting of Tourism safari C Hunting/Photographic ,, . oncesstons .... On 17 th November , 2 0 2 1, Honourable Rodney Sikumba, MP, Minis ter of Touris m, issued a statement exhibited and marked "MC/ JCC5" dissolving, a mongst others, the Wildlife Management ( Licencing Committee. The issue for my determination is therefore whether or not the decisions complained of were illegal, irrational and procedurally improper. Section 5 of the Zambia Wildlife Act No.14 of 2015, hereinafter referred to as the Act, inter alia, establishes the Department of National Parks and Wildlife and provides for its functions as follows: J17 r i "5( 1). There is established in the Ministry responsible for tourism the Department of National Parks and Wildlife which shall be responsible for the administration of this Act under the general direction of the Permanent Secretary of the Ministry. (2) Subject to the other provisions of this Act, the functions of the Department are to -(among other things) (i) issue licences, certificates and permits under this Act; U) in partnership with local communities, grant hunting concessions to huntin g outfitters and non consumptive in Game Management Areas; operators tourism (u) carry out any other activities relating to wildlife conservation and management that are necessary to the performance of its functions under this Act. As shown above, section 5 (2)(i) allows the Department of National Parks and Wildlife to issue licen ces among other things. However, this is subject to other provisions of the Act. This means that Section 5(2) is a provision that does not stand on its own. As such, in order to understand its full m eaning, r esort has to be made to other provisions of the Act. Section 7 of the Act, which establishes the WMLC is however a stand-alone provision couched in m andatory terms. It provides as follows: "There is established the Wildlife Management Licensing Committee which shall - (a) consider applications for licences permits and certific~tes and grant, renew or ref~se to grant or renew licences, permits and certificates; J18 ( d)perform the functions of the Department relating to licensing. Section 7(1) (a) therefore gives the mandate to consider applications for the granting of licences amongst others, to the WMLC. In fact, section 7(1)(d) qualifies section 5(2)(i) when it provides that WMLC shall perform the functions of the Department relating to licensing. Section 5 (2) (j) provides that subject to the other provisions of the Act, the functions of the Department are to grant hunting concession s to hunting outfitters and non-consumptive tourism oper ator s in Gam e Ma nagement Areas. This provision should be read with other provisions in the Act. Section 48 of the Act provides tha t: "48(1) Subject to subsection (2), the Committee may, upon application by a hunting outfitter in the prescribed manner and form and upon payment of the prescribed fee, grant the hunting outfitter a hunting concession." It is clear from the provision above that, Section 48 ( 1) of the Act qualifies Section 5 (2) U) as it spells out who actually grants hunting concessions. Furthermore, Section 40(1) of the Act provides as follows: "The Committee may, upon ap plication made by a person to the Committ ee in the p rescribed manner and form and upon payment of prescribed fee, issue a hunting licence to that person." J19 "Committee" is defined in Section 2 of the Act as the Wildlife Management Licensing Committee appointed under section 7 of the Act. In light of the above, I agree with Counsel for the Applicants that the Respondent herein undertook an activity for which they had no legal authority to do when they issued tenders for the granting of Hunting/Photographic concessions under MoT/NCS/001/2022 and invited applications for Resident and Bonafide hunting licences. According to the authorities highlighted above, this was the preserve of the WMLC. In the case of Andreas Panani v. Attorney General (2010) ZR 73 Volume 1 , the Court stated that: "An administrative decision is flawed if it is illegal. A decision is illegal if it contravenes or exceeds the terms of the power which authorizes the making of the decision; pursues an objective other than that for which the power to make the decision was conferred. That the task for the courts in evaluating whether a decision is legal, is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision maker. Further, that there is a presumption is required that procedural fairness whenever the exercise of a power adversely affects an individua l's rights protected by common law or created by statute." In the case of Doody v. Secretary of State for the Home Department the Court decided that fairness requires that where C ( an Act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances. The learned authors of De Smith's Judicial Review state that there is a presumption that procedural fairness is required whenever the exercise of power adversely affects an individual's rights protected by common law, or created by statute. These include rights in property, personal liberty, status, and immunity from penalties, or other fis cal impositions . (See De Smith's Judicial Review (supra) paragraph 7-017 at p. 365-366). Since the Minister of Tourism Hon. Rodney Sikumba dissolved the WMLC , as shown by exhibit marked "MC/ JCCS", there was no Committee as ma ndated by the Act, left to carry out the functions of the WMLC . Further, the committee whose membership is comprised of the differ ent components mentioned under section 7 (2) of the Act and who are a ppointed by the Minister, are mandated to do the very things that the Applicants are complaining against. Had the Minister appointed the members of WMLC in compliance with the Act as provided for in section 7 aforesaid, the complaint by the Applicants pertaining to the actions of August 2022, and 2nd September 2 022, as undertaken by th e DNPW resp ectively, and as J21 ( ( contained in the statement on application to apply for judicial review dated 20th September, 2022, would have been addressed by the said WMLC. I am therefore of the considered view that the Respondent herein acted ultra vires when it made the decisions complained of. IRRATIONALITY AND PROCEDURAL IMPROPRIETY With regards the second and third grounds upon which the reliefs herein are sought, the Applicants stated that the decisions were arbitral , unreasonable and unfair as the same were arrived at without taking into consideration the local people, without ascertaining th e population of wild animals before issuing the Hunting quotas thereby making the Hunting areas vulnerable to clashes and confusion . That the decision to issue Resident and Bonafide Hunting Licences in the manner complained of herein was or is unreasonable and unfair as the imposition of 25% of gross revenue being payable to the local community, was arrived at without consulting a ll the relevant stakeholders thereby failing to take into consideration the Outfitter's marketing, logistical and other costs that are incurred in operating a concession. In the case of Derrick Chitalu v. Attorney General Supra, the Supreme Court stated that: J2 2 ., ( ( "Next is the question of irrationality. We heard submissions that the decision not to set up a constituent assembly, whichfl.ew in the teeth of the recommendation of the commission, was unreasonable and was actuated by bad faith and improper motives. In law, a decision can be so irrational and so unreasonable as to be unlawful on Wedsbury' grounds. See Associated Provincial Picture House Limited versus Wedsbury Corporation (7). The principle can be summarized as being that the decision of a person or body performing public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly law and acting directing reasonably could have reached that decision.'' the relevant itself on Regarding procedural impropriety, the Court in the case of North Western Energy Company Limited v. The Energy Regulation Board (2011) ZMHC 76 8 stated as follows: "Under "procedural impropriety" the goal of achieving or securing procedural fairness towards person who will be affected by the administrative decision is underscored. In keeping with this aim, the courts ensure that administrative decisions or actions conform with the procedural rules that are expressly laid down in the statute or instrument by which the jurisdiction of the administrative body, or public official is conferred. The learned authors of De Smith's Judicial Review observe in paragraph 6-001, at page 317, as follows: an important concern of procedural the opp~rtunity f?~ individuals to participate in decisions by pubhc au~hor1t1es that affect them. Another is to promote the quahty, accuracy, and rationality of the decision ma~~ng process. Both concerns aim at enhancing the legitimacy of the process, whilst at the same time improving the quality of decisions made by public authorities." to provide justice is J23 In light of the foregoing, it is prudent for the courts to ensure that administrative decisions or actions conform with procedural rules that are laid down in statute by which the jurisdiction of the administrative body is confer_red. I am however of the considered view that the Applicants herein have not led evidence to prove the allegations made out in the second and third grounds hereinbefore mentioned. I find that the second and third grounds have not been ( proved on those particular issues alleged by the Applicants herein. Accordingly, the ground of irrationality fails. All in a ll , I find th at the Respondent herein acted ultra vires when it made the d ecisions complained of. The Applicants therefore succeed only on the first ground. I hereby grant the reliefs sought in clauses (a) (b) (c) (d) (e) and (h), the said costs to be taxed in d efault of agreement. ( . Dat d e a t L usa a k th · - GI\ Qc e ............ r.. [ o ........ irll1~/JJ~ .. d ELITA P. MWIKISA HIGH COURT JUDGE f k<~·Y\hJ~ .................... <.-:,'2022 J24