The People v The Resident Magistrate Ex- Parte Finance Bank Zambia Limited (Appeal No. 325/2023) [2024] ZMCA 293 (19 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No. 325/20~ IN THE MATTER OF AN APPLICATION BY FINANCE BANK ZAMI: LIMITED FOR JUDICIAL REVIEW IN THE MATTER OF ORDER 5 SUPREME COURT OF ENGLAND RULES OF T: BETWEEN: THE PEOPLE AND - ... - ............ __ NOV 2024 .~ ... l" - ........ ,.... =G,..,1· I i THE RESIDENT MAGISTRATE EX-PARTE FINANCE BANK ZAMBIA LIMITED CORAM: Chashi, Makungu and Sichinga, JJA On 12 and 19 November, 2024 For the Appellants : Mr. M. Nkunika of Messrs Simeza, Sangwa and Associates For the Respondent: Mrs. B. M. Kamuwanga, Senior State Advocate and Mrs. N. N. Mbao, Senior State Advocate, Attorney General's Chambers JUDGMENT Sichinga JA, delivered the judgment of the Court. Cases referred to: 1. Diego Casili v Access Bank (Zambia) Limited and 4 Others, CAZ App 259 of2022 2. Dean Mung'omba, Bwalya Ng'andu and Anti-Corruption Commissior Peter Machungwa, Golden Mandandi and the Attorney-General (2003) 2 3. Council of the Civil Service Unions and Others v the Minister for the C Service [1985] 1 A. C. 374 4. JCN Holdings Limited v Development Bank of Zambia, SCZ Judgment J 22 of2013 5. John Sangwa v Sunday Bwalya Nkonde, SCZ Appeal No. 2 of 2021 6. Citibank Zambia Limited v Suhayl Dudhia, CAZ Appeal No. 16 of 2020 7. Hakainde Hichilema and Godfrey Bwalya Mwamba v Edgar Chag Lungu and Others, CCZ Ruling No. 33 of 2016 8. Rosemary Nyangu v Pamodzi Hotel, SCZ/ 8/08/2021 9. Manda v Mubanga, CAZ/ 08/ 36/ 2022 10. Phillip Muntatika and Mulyata v Kenneth Chipungu, SCZ Appeal No. 9-<1 11. Dr. Ludwig Sondashi v the Attorney-General, SCZ Judgment No. 27 of 12. Mwanza v the People (1976) ZR 154 13. The Chief Constable of the North Wales police v Evans [1982] lWLR 11 . HL 14. The Attorney-General and Another v Lewanika and Others (1993-19 Z. R. 164 15. Becke v Smith (1836) 2M and W 191 (10) 16. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [ 1 9, 1 KB 223 J2 Legislation referred to: 1. The Criminal Procedure Code, Chapter of the Laws of Zambia 2. The Rules of the Supreme Court (1965), 1999 Edition 3. The Subordinate Court Act, Chapter 28 of the Laws of Zambia 4. The Court of Appeal Act No. 7 of 2016 5. The High Court Rules, Chapter 27 of the Laws of Zambia Other sources referred to: 1. Maxwell on Interpretation and Statutes, P. St. J . Langan, 12th Editi, LexisNexis 1.0 Introduction 1. 1 In this Judgment, we shall refer to the appellant, Finan Bank Zambia Limited, as the applicant and the Reside Magistrate as the respondent as these were their designatio in the Court below. 1.2 This is an appeal against the decision of the High Court Lusaka in which C. Zulu J, dismissed the applican · application for Judicial Review. 2.0 The Background 2.1 On 1 April 2021, the applicant applied for leave to commen Judicial Review in respect of the decision made by t Resident Magistrate pursuant to section 91(1) of t J3 Criminal Procedure Code Act1 to issue a summons dated March 2021, compelling the attendance of the applicant befc the court for purposes of trial on the offences alleged to ha been committed by the applicant and the decision of t Resident Magistrate at Lusaka to draw up and sign a forrr charge dated 16 March 2021, containing statement of offenc with which the applicant is charged pursuant to section 90 of the Criminal Procedure Code Act supra (referred to as t decisions). 2.2 The applicant prayed for the following reliefs: 1. A declaration that the decisions constitute an abuse of the co process and therefore illegal; 11. An order of certiorari to remove in to the High Court for the purpc of quashing the said decisions; 111. A hearing of this application before the Judge pursuant to Rule ~ of Order 53 of the Rules of the Supreme Court (RSC)2; 1v. If leave is granted, a direction be given that the grant of le, should operate as a stay of the decisions to which this applicat relates pursuant to Rule 3(1 0)(a) of Order 53 of the RSC; v. If permission to apply for judicial review is granted, a direction ti the hearing of the application for judicial review be expedited; vi. An order for costs; and vu. That all necessary and consequential directions be given. 2. 3 This matter has a long and detailed history which ' summarise here. According to the Notice for leave to apply J J4 judicial review, the applicant is a company registered Zambia which took out an action by way of writ of summo under Cause No. 1996/HP/4739 against Dimitri Monokandilos (the complainant) and another individ"L named Kosmas Mastrokolias, as guarantors, claiming the su of US$1,200,000 or its kwacha equivalent being outstandi to the applicant according to a letter of guarantee dated : November 1995, from a debt of International Investments ai Financing Limited. 2.4 On 17 May 1998, the applicant obtained judgment in favour against the complainant and Mastrokolias in the st: of US$1,200,000 plus interest. 2.5 In 1997, the complainant and his wife commenced a separc civil action in the High Court against the applicant und Cause No. 1997 /HP/ 136 claiming damages for conversion US$949,933.81. After a long lull in the action owing to t complainant's absence from Zambia, the suit was resurrect under Cause No. 2012/HPC/577. The High Court deliver judgment in favour of the complainant and his wife on ' March 2018, in the sum of US$949,933.81 plus interest. 2.6 The complainant appealed to this Court, and on 29 Novemt 2019, the Court of Appeal delivered its judgment in favour the complainant and his wife. The judgment of the Court h since been stayed pending leave to appeal to the Suprer Court. JS 2.7 Upon the complaint's return to Zambia, the applicant soug to enforce the judgment under Cause No. 1996/HP/47: against the complainant and Mastrokolias. An order w granted against them on 5 April 2018. After leave was grant, to enforce the judgment under Cause No. 1996/HP/4739, tl applicant took out an application to attach all the funds due it under Cause No. 2012/HPC/577. The funds under Cau No. 2012/HPC/577 were insufficient to satisfy the judgme debt under Cause No. 1996/HP/4739. In an effort to sati~ the said judgment debt, the applicant instituted bankrupt proceedings against the complainant under Cause l\ 2020 / HPC / 7 40, and an official receiver was appointed for t complainant as a bankrupt by order dated 23 November 202 1 2.8 Following the appointment of the official receiver, complainant initiated criminal proceedings against t t applicant. The Resident Magistrate issued a summons to t applicant as an accused on 10 March 2021. In the summor the applicant is alleged to have inter alia forged a Letter Guarantee purporting that it was genuinely issued and sign by the complainant when in fact not. In addition, the Reside Magistrate is alleged to have drafted and signed a f orrr charge against the applicant, as the accused, dated 16 Mar, 2021. 2. 9 The applicant sought judicial review on the grounds illegality, procedural impropriety and irrationality. T J6 applicant contended that the decisions of the Residt: Magistrate were ultra vires section 90(4) and section 91(1) the Criminal Procedure Code Act in that the decisions we: not in the interest of or 1n the furtherance of t administration of justice of the private interests of t complainant. 2.10 With respect to procedural impropriety it was contended tr the summons to the applicant as the accused dated 10 Mar 2021, was issued before the formal charge dated 16 Mar 2021, was drawn up and signed by the Resident Magistn contrary to the provisions of section 90(4) and section 91 the Criminal Procedure Code Act. 2.11 On irrationality, it is contended that the decisions we: irrational in that manifestly relevant considerations, outlin in the affidavit in support of the complaint, were not tak into account in the making of the decisions. 3.0 The Decision of the Lower Court 3. 1 After considering the application before him together with t arguments by counsel, Zulu J, considered the procedure 1 judicial review pursuant to order 53 RSC. He found that t complaint was instituted against the applicant in a law1 manner. That the Resident Magistrate exercised his pow<: within the confines of the law pursuant to section 90(4) a J7 aptly issued summons pursuant to section 91(1) of t. Criminal Procedure Code. 3.2 Notwithstanding that the Resident Magistrate found that t order of issuing the summons and the charge was irregul because the summons to the applicant was issued before t charge was drawn, he held that this did not render the whc proceedings illegal for want of procedural propriety. adjudged there was no prejudice that was occasioned to t applicant as it made appearance before the lower Court af1 the charge was drawn. 3.3 The Judge found that the procedural error was not sufficie to warrant a relief under judicial review as contemplated Order 53 RSC. He opined that a curable procedural err could be redressed through the legal framework of the lov. Court's supervisory jurisdiction over the Subordinate Court provided under section 54 of the Subordinate Court Ac and sections 337 and 338 of the Criminal Procedure Co, He went on to dismiss the application and made no order as costs. 4.0 The Appeal 4.1 Aggrieved with the decision, the applicant appealed raising fi grounds of appeal as follows: 1. The decision by the trial Court below that the crimi, complaint against Finance Bank Zambia Limited was neitl J8 oppressive nor harsh and neither was it in excess nor in w< of authority on the part of the respondent was against 1 law; 2. The finding by the trial Court that the criminal proceedi, against Finance Bank Zambia Limited were legitimat, instituted was against the law and the weight of 1 evidence; 3. The decision that the respondent was prima facie justified allow the institution of criminal proceedings against Fina, bank Zambia Limited under section 90 of the Crimi, Procedure Code Act, on the ground that the complaint Dimitrios Monokandilos was factually anchored reasonable and probable cause was against the law; 4. The decision by the trial Court that arguments by Fina, Bank Zambia Limited relating to abuse of power a irrationality were untenable was against the law and 1 weight of the evidence; and 5. The decision by the trial Court that the issuance of summons against Finance Bank Zambia Limited before 1 charge did not render the complaint against Finance Ba illegal, neither did it render the charge illegal nor defect was against the law. 5.0 The Appellants' Arguments 5.1 On behalf of the applicant, Mr. Nkunika, learned coun: begun his submissions with an apology regarding the lengt submissions filed in support of the appeal. Counsel stated tr this appeal was launched before the guidance this Court ga J9 in the case of Diego Casili v Access Bank (Zambia) Limit and 4 Others1 . That notwithstanding, Mr. Nkunika relied the applicant's detailed heads of argument of dissertatior proportions spanning 88 pages filed on 12 October 20~ Grounds one, two and three were argued together, a grounds four and five were equally argued separately. We sh endeavour to summarise the arguments. 5.2 In support of the first three grounds of appeal, it was counsc position that the decisions subject of the grounds are agair the law for two reasons: the first being that the trial Co1 ignored the applicant's case as set out in the notice application for leave to apply for judicial review and devised own case; and secondly, the trial Court misapprehended t law on judicial review by pronouncing on the merit of t decisions that were the subject of judicial review as opposed their lawfulness. 5. 3 Accordingly, Mr. Nkunika chronicled the practice a procedure set out in Order 53 of the Rules of the Supre, Court. Further, he relied on a plethora of authoriti including: the case of Dean Mung'omba, Bwalya Ng'an1 and Anti-Corruption Commission v Peter Machungu Golden Mandandi and the Attorney-General2 where t Supreme Court noted that the main issue in the appt centred on the parties, the law and practice to be followed judicial review proceedings; and the case of Council of t JlO Civil Service Unions and Others v the Minister for t Civil Service3 where procedure for judicial review w articulated. 5.4 It was argued that in the present case, the lower Court did r review the decisions on 10 March 2021 and 16 march 2021 , the grounds of illegality, procedural impropriety ai irrationality as raised in the notice and based on the facts ~ out in the notice and verified by the affidavit in support. 5.5 In the premises, counsel urged the Court to either remit t case to another trial Judge to hear the application de nova a render a decision, or consider the application on the mer pursuant to section 24 of the Court of Appeal Act4. 5.6 The applicant's contention in ground four is that lower Col never addressed the merits of the application on the basis tr the decisions complained of were irrational. It was argued tr the lower Court's consideration of whether the Letter Guarantee was embossed with a forged signature or whetr the respondent was justified to exercise his discretion to all< the institution of criminal proceedings under section 90 the CPC were irrelevant. Conversely, that the issue for t lower Court's consideration was whether the complaint Dimitrios Monokandilos was factually anchored on reasonal and probable cause. J11 5.7 Mr. Nkunika implored the Court to quash the decisior subject of judicial review on the premise that they wt unreasonable in the Wednesbury sense. 5.8 In ground five, it was argued on behalf of the applicant th there was procedural impropriety or illegality in the tr Court's decision. Further, that the respondent's decisions wt in arriving at illegal and there was procedu1 impropriety. It was argued by counsel that the Court below c not perceive any illegality in the manner the responde them, exercised his under sections 90 and 91 of the CPC. That t summons was issued before the formal charge was settled . . a result, there was both illegality and procedural improprit in the decision made by the respondent. Further, that t decisions were illegal because they were intended to advan the private interest of the complainant. 5.9 In conclusion, Mr. Nkunika urged the Court to: grant declaration that the decisions made by the respondent wt illegal on the grounds of illegality, procedural impropriety ai unreasonableness; an order of certiorari to remove into t High Court for the purposes of quashing the said decisions; : order for costs; and all necessary and consequent directions. J12 6.0 The Respondent's Arguments 6.1 On behalf of the respondent, Mrs. Mbao relied on t respondent's heads of argument filed on 6 November 2024 .. a prelude to the arguments, it was submitted that t applicant ought to have approached this Court by way of renewed application and not by way of an appeal. Relian was placed on Order 53/3 rule 4 and rule 5 of the RSC. 5.2 It was submitted that since the matter was wrongly before t Court, we lacked jurisdiction to entertain the appeal. The ca of JCN Holdings Limited v Development Bank of Zam.bi referred to. Counsel advanced that since the notice of app<: was made without jurisdiction, the appeal amounts nothing. We were referred to a number of other cases on t point of jurisdiction including John Sangwa v Sund◄ Bwalya Nkonde5 , Antonio Ventriglia and Manue Ventriglia v Finsbury Investments Limited6 , Citiba1 Zambia Limited v Suhayl Dudhia6 , and Hakain1 Hichilema and Godfrey Bwalya Mwamba v Edgar Chagi Lungu and Others7 . 5.3 On the import of adherence to rules of court, we were referr to three cases, namely, Rosemary Nyangu v Pamodzi Hote Manda v Mubanga9 and Phillip Muntatika and Mulyata Kenneth Chipungu 10. In these cases, the Courts found: t applicant's motion incompetent; that failure of parties or t court to follow the practice and procedure as promulgated J13 the rules is an injustice; and that failure to adhere to the rul of court can be fatal to a party's case, respectively. 6.4 In light of the above authorities, we were urged to dismiss t application for judicial review. 6.5 Without prejudice to the prelude of their submissions, t respondent's counsel argued on the merits of the appeal th an applicant is not entitled to be granted leave to proceed the substantive hearing of judicial review proceedings if it c; be shown that there is an available alternative avenue challenge the decision sought to be reviewed. In support this submission, we were referred to a plethora of authoritj inter alia Order 53/14/27 of the RSC, and the case of 1 Ludwig Sondashi v the Attorney-General1 1 . 5.6 It was argued that there was an alternative remedy available the applicant other than to commence judicial revi◄ proceedings. Counsel advanced that the alternative remedy casu is to apply for revision under sections 337 and 38 the CPC for the High Court to call a record to examine a satisfy itself as to the correctness, legality or propriety of a finding, sentence or order passed by the respondent. The ca of Mwanza v The People 12 was cited in support of tl proposition. 6. 7 Counsel argued that the application for judicial review untenable in the present case, because an alternative reme in the form of revision is and was available to the applicant. J14 6.8 In conclusion it was submitted that there is no case to · argued further in this matter without challenging or setti1 aside the validly issued summons by the respondent. Coun~ submitted that the applicant's application for leave should · dismissed with costs. 7.0 Appellants' Arguments In Reply 7.1 In his brief reply, Mr. Nkunika argued that the responden heads of argument had mischaracterized the appeal in th they contend that the applicant was never granted leave commence judicial review proceedings. That to the contrru leave was granted and the appeal is premised on the low court's decision to refuse to grant the reliefs sought. Coun~ argued that all the issues raised related to leave, which we not relevant at this stage. Further, that the respondent al touched on the merits of the decision but the applicant w interrogating the processes used to arrive at the decisic Counsel prayed that this Court uphold the appeal with costs B. O Our Considerations and Decision 8.1 Before we examine the merits of the appeal, we wish address two issues. The first is on jurisdiction was raised the respondent's counsel. The respondent's view of this appt as gleaned from the arguments filed, is that the decision oft lower Court of 28 December 2022 was one denying t applicant leave to apply for judicial review. That instead JlS renewing the application for judicial review before this Co1 as prescribed by Order 53/3 rule 4 and rule 5 of the RS the applicant has wrongly come to this Court by way of ; appeal. As such we do not have jurisdiction to entertain tl matter. 8.2 Our brief reaction to the respondent's submission is that t preamble of the impugned judgment is clear. It states at pa 14 of the record of appeal as follows: "The Applicant, Finance Bank Zambia Limited was by ore. dated February 2, 2022, granted leave to commence judic review proceedings. The order was made pursuant to Ore. 53 rule 3 (2) of the Rules of the Supreme Court (RSC) 19t (White Book 1999 Edition). The application for leave commence judicial review proceedings was unchallenged. A by these proceedings, now at substantive stage, the ApplicG seeks the intervention of the Court to review the "decision" the lower court, the Subordinate Court presided over by t Resident Magistrate, sitting at Lusaka." 8. 3 It is clear to us that this matter is no longer at the leave sta{ as perceived by the respondent. The Court below delivered judgment on the substantive issues raised after it grant leave. The respondent's objection on account of jurisdiction misconceived and accordingly dismissed. 8.4 The second issue we once again, wish to say something abo relates to the applicant's heads of argument, which we earl: described as being of dissertational proportions. In the case J16 Diego Casili v Access Bank (Zambia) Limited and 4 Othe supra, which we recently handed down on 14 August 2024,, dedicated a whole segment of our judgment to heads arguments. We referred to Order 10/6 (b) of The Court Appeal Rules (CAR) which provides for lodging of an appeal · filing the record of appeal together with heads of argument. 8.5 In addition, Order 10/9 (1 OJ CAR provides as follows: "The document setting out the heads of argument sh, clearly set out the main heads of the appellant's argume, together with the authorities to be cited in support of ea head of argument." 8.6 We bemoaned the recent trend of the filing of volumino heads of argument. We referred to the judgments of oth jurisdictions and their position on lengthy heads of argume1 We note that, in the appeal before us, the contents of t arguments were not only repetitive, but apparently wt: arguing the case as if was before the court of first instance a not an appellate court, with the restating of facts at large. 8.7 The applicant's submissions before us are 88 pages which c a repetitious restating of the facts, and to a large exte verbose. We sounded a warning to advocates that in future' would not entertain such heads of argument, which wuL suffer the fate of being expunged or struck out. 8.8 However, we have taken note in this case, as Mr. Nkuni stated, that the applicant's counsel filed their argumer J17 before our judgment in the said Diego Casili case. Merely 1 emphasis, our position is that 'although our rules do r prescribe the maximum number of pages heads of argumE should contain, parties should by all means refrain from fili dissertations, thesis or written submissions. Save in exceptior. cases and circumstances, heads of argument should not exce, thirty (30) pages.' 8. 9 Turning to the substance of the appeal, we have carefully re: the record and considered the arguments by counsel. In t first three grounds of appeal which are presented together, t applicant complains against the decisions of the trial CoL that the criminal complaint against it was lawful, legitimat( instituted, and factually anchored on reasonable and probal cause. The applicant contended that these decisions we illegal. In ground four the applicant complained that t decisions were irrational, and ground five charges that t issuance of summons was illegal. We shall deal with all t grounds of appeal as one as they are interrelated. The crux matter is whether or not the applicant is entitled to t remedies following a successful judicial review. 8.10 The applicant applied for judicial review in relation to t decisions made by the respondent at Lusaka pursuant section 91(1) of the Criminal Procedure Code Act to iss· summons dated 10 March 2021, compelling the attendance the applicant before the court for purposes of trial on t J18 offences alleged to have been committed by the applicant, a the decision made by the respondent at Lusaka to draw 1 and sign a formal charge dated 16 March 2021, containi statements of offences with which the applicant is charg pursuant to section 90(4) of the Criminal Procedure Co Act. 8.11 The case for the applicant, as captured in the notice for lea to apply for judicial review, is as narrated in the backgrour In addition, following letters, exchanged between t complainant's and applicant's advocates regarding the alleg forgery of the complainant's Letter of Guarantee by t applicant, the complainant filed a criminal complaint agair the applicant on 18 February 2021. It was supported by , affidavit pursuant to section 90 of the Criminal Procedu Code Act. The gist of that affidavit by the complainant w that his signature was forged on a purported Letter Guarantee indicating that he was indebted to the applicant the sum of US$1,200,000.00. 8. 12 It was averred that the said forged Letter of Guarantee w uttered before the courts of law to obtain a summary judgmc against the complainant and one Kosmas Mastrokolias unc Cause No. 1996/HP/4739. That following the said summ2 judgment, the applicant deducted a total of US$1,500,000. 1 from a joint account held by the complainant with his wi Filandria Kouri, without the latter's consent, which accou J19 was with the applicant. That in 1997 the complainant and l wife took out an action against the applicant under Cause l\ 2012/HPC/0577 (previously 1997 /HP/ 136 for monies wron! debited from their joint account and obtained judgment their favour in the sum of US$949/933.81. The Court Appeal upheld the lower Court and found that in fa US$1,500,000.00 had been deducted from their account. A1 that an application for leave to appeal is pending before t Supreme Court. 3.13 It was further disclosed that whilst the civil proceedings we ongoing, the complainant was also pursuing the same issu with the Zambia Police Service. The latter pursuits culminat, in a letter headed "TO WHOM IT MAY CONCERN," from t Zambia Police Service which read in part as follows: "Investigations were immediately instituted into the mati and a warrant was prepared to inspect the alleged accou, A bank statement was released by the Bank staff and showed that the account number 0880012002 is a Joi dollar account for Mr. and Mrs. Monokandilos Domitrios a Fil. It also should that between July 1996 and August 195 the money was used for loan recovery. The bank staff cot not avail the police with any supporting documents for pre and referred everything to the bank legal counsel, J Sokwani Chilembo, who could also not produce a documentation and in return, referred the Police to a J David Chakoleka for Mulenga Mundashi and Company, lawyer defending the bank in the courts of laws for possil J20 assisting with documentation, if any. He produced document that read 'letter of gaurantee' without a supporting document showing that there was a lo agreement between the client and the bank. The victim u advised to take a civil action against the bank and close 1 criminal case." 8.14 With the above information before the respondent, he issuec summons to the applicant as an accused dated 10 Mar 2021, which reads in part as follows: "AND WHEREAS IT IS ALLEGED that you, Finance Ba Zambia Limited on 30th of November, 1995, forged a Letter Guarantee purporting to show .that it was genuinely issu and signed by one Monokandilos Dimitrios when in it u fact not. That you also on the 17th of May, 1999, utterec. Letter of Guarantee to the Court to obtain a Summc Judgment against Dimitrios Monokandilos and Kosm Mastrokolias (1996/HP/4739) knowing that it was a fa document, and on dates unknown but between 17th May, 19 and 3(Jth December 1999 did steal $1,500,000 the property Dimitrios Monokandilos and Filandria Kouri from their Jo bank account held with you, account numJ 0101800121000." 8. 15 Further, the respondent drafted and signed a formal chm against the applicant as the accused dated 16 March 2021 follows: "(a) One count of forgery contrary to section 344 of 1 Penal Code Act and the particulars of the offence wi that "Finance Bank Zambia Limited on 3(Jth of NovemJ J21 , 1995 forged a Letter of Guarantee purporting to sh that it was genuinely issued and signed by <J Dimitrios Monokandilos when in fact it was not"; (b) One Count of uttering a false document contrary section 352 of the Penal Code Act; "the particulars the offence were that "Finance Bank Zambia Limited the 17th of May 1999, uttered a Letter of Guarantee the High Court at Lusaka to obtain a Summ, Judgment against Dimitrios Monokandilos and Kosm Mastrokolias (1996/HP/4739) knowing that it was false document"; and (c) One Count of theft contrary to section 272 as re together with section 265 of the Penal Code Act. 'l particulars of the offence were that: "Finance Ba Zambia Limited on dates unknown but between 1 May, 1999 and 30th December 1999, did sti US$1,500,000 the property of Dimitrios Monokandi and Filandria Kouri from their joint account held w: Finance Bank Zambia Limited, Account J 0101800121000." 8.16 Before we review the decision making process, we wish to 1 state the principle that judicial review' as the term implies not an appeal from a decision, but a review of the manner which the decision was made." This definition was stated Brightman W, in the case of the Chief Constable oft North Wales police v Evans13 . In the same case Hailshc LC, stated that: J22 "The purpose of judicial review is to ensure that individual is given fair treatment by a wide range authorities, whether judicial, quasi-judicial, administrative, to which the individual has been subject. It no part of that purpose to substitute the opinion of t judiciary or of individual judges for that of the author constituted by law to decide the matters in question." 8. 17 In the present case, following the relevant facts highlight above , the respondent purportedly acted pursuant to secti1 90 and 91 of the Criminal Procedure Code Act supra. Th provide as follows: ''90. (1) Proceedings may be instituted either by the making a complaint or by the bringing before a magistrate oj person who has been arrested without warrant. (2) Any person who believes from a reasonable and probaJ cause that an offence has been committed by any person m make a complaint thereof to a magistrate havi jurisdiction. (3) A complaint may be made orally or in writing, but if ma orally shall be reduced to writing and in either case shall signed by the complainant. (4) The magistrate, upon receiving any such complaint, sha, (a) himself draw up and sign; or (b) direct that a public prosecutor or legal practitio1 representing the complainant shall draw up and sign; or (c) permit the complainant to draw up and sign; J23 a formal charge containing a statement of the offence w· which the accused is charged, and until such charge ti been drawn up and signed no summons or warrant sh issue and no further step shall be taken in the proceedings. (5) When an accused person who has been arrested withou; warrant is brought before a magistrate, a formal cha, containing a statement of the offence with which the accus is charged shall be signed and presented to the magistrate the police officer preferring the charge. (6) When the magistrate is of opinion that any complaint formal charge made or presented under this section does , disclose any offence, the magistrate shall make an ore refusing to admit such complaint or formal charge and sh, record his reasons for such order. 91. (1) Where a charge has been drawn up and signed accordance with subsection (4) of the last preceding secti4 the magistrate may, in his discretion, issue either a summ<J or a warrant to compel the attendance of the accused pers before a court having jurisdiction to inquire into or try 1 offence alleged to have been committed: Provided that a warrant shall not be issued in the ft . instance unless the complaint has been made upon oc; before the magistrate, either by the complainant or by witness or witnesses." S.18 From the above provisions, it is clear that the institution proceedings pursuant to section 90 of the CPC or by bringi before a magistrate a person who has been arrested witho warrant is triggered by a complainant making a complaint. J24 the present case, on 18 February 2021 , the complainant fil a complaint before the respondent's court pursuant to secti1 90 of the CPC in which he deposed as follows: "I, Dimitrios Monokandilos, being the Complainant herein, . HEREBY COMPLAIN that there herein above names accu5 (Finance Bank Zambia Limited) did commit offences kno1 as: Forgery and Uttering, which are felonies contrary section 344 and 352 of the Penal Code Act, Chapter ~ Volume 7 of the Laws of Zambia. Also Theft, a felony contr, to Section 265 and 272 of the Penal Code Act, Chapter ~ Volume 7 of the Laws of Zambia. Further to the above, I DO HEREBY state that the ab< mentioned offences happened in Zambia between 1995 a 1996, my signature was forged on a purported letter Guarantee, indicating that I would be indebted to t accused Bank (Finance Bank Zambia Limited) in the sum One Million Two Hundred Thousand United States Dollars 1, 200, 000. 00). The same forged document was utter before the Courts of Law, and used to obtain Summc Judgment against me on 17th May, 1999, in the sum of (J Million Two Hundred Thousand United States Dollars ($ 200, 000.00), plus interest in the case of Finance Ba Zambia Limited v Dimitrios Monokandilos and Kosm Mastrokolias (1996/HP/4739). With this Summary Judgme the accused bank did deduct One Million Five Hund, Thousand United States Dollars from a joint account I h4 with my wife Filandria Kouri at the accused Bank and W i account number O 101800121000. To the best of 1 J25 knowledge and belief the accused person had no lawJ authority or justification for its actions. Sworn by the said Dimitrios Monokandilos) At Lusaka this _ _ day of __ February, 2021)" 3. 19 The complaint was supported by an affidavit sworn by t complainant in which he narrated the alleged facts leading its filing. It further exhibited various documents includi: police reports showing the status of investigations as at February 2013, 8 March 2013 and 17 August 2018. T complaint and the supporting affidavit were the documer that informed the respondent on the exercise of his discretio Pages 192 to 204 of the record of appeal refer. 3.20 Having received the complaint, the respondent proceeded issue summons to the accused on 10 March 2021, and drew up a charge on 16 March 2021, all purportedly pursua to sections 90(4) and 91 of the CPC. In reviewing the provisions, we are guided by the Supreme Court in the case the Attorney-General v Lewanika and Others14 that examining statutes, the fundamental rule of interpretation Acts of Parliament is that they ought to be constru according to the words expressed in the Acts themselvt Quoting the learned author of Maxwell on Interpretati1 and Statutes1 who, at p. 43, had this to say on the Gold rule of interpretation:- J26 ''It is a very useful rule in the construction of a statute, adhere to the ordinary meaning of the words used, and to 1 grammatical construction, unless that is at variance with 1 intention of the legislature, to be collected from the stat1 itself, or leads to any manifest absurdity or repugnance, which case the language used may be varied or modified, as to avoid such inconvenience but no further." 8.21 Further, in the case of Becke v Smith15 Breth W , stated that "If the inconvenience is not only great, but what I may call absurd inconvenience by reading an enactment in ordinary sense whereas if you read it in a manner in whicti is capable, though not its ordinary sense there would not any inconvenience at all, there would be reason why !:J should not read it according to its ordinary grammatit meaning." 8.22 The intent of the legislature in section 90(4) of the CPC beguiling clear to us. This provision outlines the procedure magistrate should follow upon receiving a complaint in criminal case. Firstly, that once a complaint is made , t magistrate is required to ensure that a formal charge or . official statement of the alleged offence , is created befc taking further action. The magistrate may: create the char by personally drafting and signing it; or he may direct a pub prosecutor or a legal practitioner representing the complaina to prepare and sign the charge; or he may allow t complainant himself to draft and sign the charge. J27 8.23 Secondly, the provision mandates that a formal charge m1.: be in place, that is, drawn up and signed, before a summons or warrant can be issued. This means no furth steps can proceed in the case without a clear statement oft offense. Essentially, the procedure ensures that the accus knows exactly what they are being charged with and that t legal process will not advance without a clear and formalis accusation. 8.24 In the present case, upon the filing of the complaint of February 2021, the respondent drew up summons and sign them on 10th March 2021. The charge was subsequen drawn up and signed by the respondent on 16 March 20~ some eight days after the summons was issued. This mea that the applicant was summoned to appear in court before was availed the particulars of the charge it was facing. We c satisfied that this was not the intent of the legislature. Th there was an illegality in not issuing the formal charge of t alleged offences before the summons were issues . The decisi, to issue summons before a formal charge was accordini ultra vires and a nullity. 8.25 With respect to procedural impropriety, the question consider is whether in fact the body making the decisi, observed procedural rules as outlined in the law. At page J (page 25 of the record of appeal), the learned Judge stated t following: J28 "I agree with Mr. Chimakanta that the order of issuing 1 summons and the charge was irregular, in the sense th, summons to the applicant was seemingly issued before 1 charge was drawn. This error does not render the wht proceedings ab initio illegal for want of procedu1 impropriety. The issue of summons before the charge does , render the complaint illegal, neither does it render 1 charge defective, except the summons." 8.26 In the case of Council of the Civi.l Service Unions ai Others v the Minister for the Civi.l Service supra, Diplo LJ, outlined 'procedural impropriety' as follows: "I have described the third head as ''procedural improprie1 rather than failure to observe basic rules of naturaljustice failure to act with procedural fairness towards the per5 who will be affected by the decision. This is becai susceptibility of judicial review under this head covers a failure by an administrative tribunal to observe procedui rules that are expressly laid down in the legislat instrument by which its jurisdiction is con/ erred, even wl, such failure does not involve any denial of natural justice." 8.27 In the context of this case the procedure which the responde was called to observe is enshrined in the law as we ha outlined above. The decision to deviate from the ste prescribed in the law denied the applicant an opportunity prepare to meet the allegations contained in the charge befc the summons was issued. The rules of natural justice inclu a right to be heard, and a right to be informed of any adve1 allegations made. J29 8.28 In the present case, we are satisfied the respondent's failure adhere to procedure contained in the law by issuing summons before drafting the charge amounted to procedu1 impropriety. 3.29 Turning to the issue of irrationality as raised in ground four, is trite that a decision will be so termed irrational unreasonable, where it is considered so outrageous in defiance of logic or accepted moral standard that no sensil person, who applied his mind to the question to be decide: could have arrived at it. As such a decision render unreasonable, will be susceptible to be quashed. This is wb Greene MR, in the case of Associated Provincial Pictu Houses Ltd v Wednesbury Corporation16 term "Wednesbury unreasonableness. " The principle applies exceptional cases where the unreasonableness of a decisi1 verges on absurdity. 3.30 In the circumstances of this case, as we have shown abrn the relevant provisions of the law required the respondent adhere to a procedure. He issued a warrant before a char! which according to the stated provision was unlawful but our view, remotely irrational. 3.31 Having reviewed the decision making process , we are satisfi the provisions of sections 90 and 91 of the CPC by which t respondent was called to exercise his jurisdiction are couch in mandatory terms as they use the word 'shall' as opposed J30 'may'. In our view, it is clear from the wording of the CPC J that the respondent ought to have availed the applicant charge before a warrant was issued. We have earlier renderi the said decisions a nullity. This means that there is nothii for us to quash. 3.32 In the view we have taken, we substantially find merit in tl appeal and accordingly set aside the judgment of the low court. ;}.0 Conclusion ) . 1 In conclusion we emphasise that judicial review 1s n concerned about the outcome of a process but rather wheth the right procedures have been followed. This may entail th a public body could be placed in the position of making t decision again, provided it is done in a lawful manner. ).2 As the exercise of the respondent's juri iction is a matter public interest we order each P, own costs. J. Chashi COURT OF APPEAL JUDGE C. K. Makungu COURT OF APPEAL JUDGE SC JUDC J31