Garry Nkombo and Anor v Robert Chabinga and Ors (APPEAL NO. 191/2018) [2019] ZMCA 342 (4 December 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 191/2018 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GARRY NKOMBO CHISHIMBA KAMBWILI AND ROBERT CHABINGA HENRY MULENGA ATTORNEY GENERAL ~ <1_ - C 4 G? .: 20;9 --- ._1 ST APPELLANT ° APPELLANT 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT BEFORE: CHISANGA JP, MULONGOTI AND MAJULA, JJA On the 27th March 20 19 and 4 th December 20 19 For the 1s t Appellant: Fo r the 1st 2 nd Appellants: Mr. M . H . Haimbe, Mess rs Malambo & Company M r. G. Phiri, Messrs PNP Advocates For the 1st & 2 nd Respondent: N/ A For the Jrd Respondent: Mrs. L . S. Chibowa, SSA with Mr. E. Sitali, SA, Attorney General's Chambers JUDGMENT CHISANGA, JP delivered the Judgment of the Court Cases ref erred to 1. Mulungushi vs Chanda 2. Development Bank of Zambia & Another vs Sunvest Limited (1995- 97) ZR 187 3. BP Plc vs Interland Motors Limited and Others (2001) ZR 37 4. Mung'omba and Others vs Machungwa & Others (2003) ZR 17 Jl -, 5. The People vs the Patents and Companies Registration Agency Exparte Finsbury Investment and Another 2017/CCZ/003 selected Judgment No 28 of 2018 6. R vs Rent Officer Service, ex-parte Muldoon, R vs Rent Officer Service, ex-parte Kelly (1996) 3 ALL ER 948 7. Jamas Milling Company Limited vs Imex International Limited (2002) ZR 79 8. Access Bank Zambia Limited vs Group Five/Zcon Business Park Venture SCZ/8/52/2 9. General Nursing Council of Zambia vs Ing'utu Milambo Mbangweta (2008) ZR 105 10. Afrope Zambia Limited vs Antony Chate and Others SCZ Appeal No 160/2013. 11. Dan Pule & Others vs The Attorney General & Others, CCZ Selected Judgment No 60 of 2018 12. Inland Revenue Coms vs National Federation Interest of Self- employed and Small Business Ltd (1981) 2 All ER 93 13. Zinka vs Attorney General (1990-92) ZR 73 INTRODUCTION This appeal is interlocutory. It is against a ruling refusing to join the appellants to an application for leave to move for judicial review. The said leave is being sought by the 1st and 2 n d respondents in the court below. They are thus t h e applicants. Henry Mulenga is Executive Director of Gallant Youth Zambia Foundation Limited, while Robert Chabinga is a Good Governance Activist Politician and businessman. They seek leave to move for judicial review the decision of the Speaker of the National Assembly , recommending that the Notice of Motion for Impeachment of th e President be tabled without regard to the active cases in the Constitutional Court. J2 -' The Notice of Motion for Impeachment of the Presiden t was presented by Gary Nkombo (Member of Parliament) and Chishimba Kambwili. It was couched as follows: "Supplement to votes and Proceedings Of Thursday 22nd March, 2018 NOTICE OF MOTION Hon. Gary Nkombo IMPEACHMENI' OF PRESIDENI': That i n terms of Article 108 (1) of t he Constitution of Zambi a as ame nded by the Constitution of Zambia Ac t No. 2 of 2 016 (''the Constitution"), this House do resolve that the President of the Republi c of Zambia, Mr. Edgar Chagwa Lungu, be impeached for violation of the Constitution and other laws of the Republic of Zambia and for gross misconduct AND THAT, upon adoption of thi s motion by this Hous e i n accordance w ith Article 108 of the Constitution, a tribunal be est ablished under the provisions of Article 108 aforementioned to investigate the allegations levelled and to re nder a report t o the Chief Justice pursuant to Article 108 (SJ (b) of the Constitution. (For debat e on Wednesday 2 8th March, 2018). Signed: __ (s=i=g=n=-=e=d ____________ _ _ Name: Gary G. Nkombo Signe d :. _ _ _____ _ ______ _ Name: ____ ___ ________ _ It was accompanied by grounds supporting the Motion. In brief, particulars were that the President violated the provisions of the Constitution and other Laws of Zambia contrary to Article 108(1) (a) of the Constitution. As incumbent and President elect, he refused, failed and or n eglected to hand over executive functions to the Speaker of the National Assembly during the pendency of the J3 -, Presidential Election Petition in the Constitutional Court under cause number 2016/CCZ/0031. Continuing, that he violated Article 104(3) of the Constitution when h e purported to exercise executive power contrary to Article 104 (3). Several other violations in relation to Articles 122, 113 and 114(2) of the Constitution were cited. The second ground was gross misconduct, bringing the Office of the President into disrepute, ridicule and or contempt. Continuing that he conducted himself in a manner which was prejudicial or inimical to the economy or security of the State, as well as engaging in corruption. Upon receiving the Notice of Motion, the Speaker of the National Assembly tabled it on 28th March 20 18, when it was decided that the motion would be tabled and discussed at full length at a given d a te in June 2018. It was t his decision that prompted the applicants to move for judicial review, being of the view that the Speaker did not address his mind to the fact t hat the matters were pending in the lawfully constituted Constitutional Court under cause numbers 2016/CCZ/0033 and 2017 /CCZ/ 004, and that allowing the same to be tabled was prejudicial to the court proceedings. The applicants' views were that the Speaker of the National Assembly should have waited for the Court to determine these mattes, and would then have been in a position to determine whether or not to table the motion. His decision to recommend that the Notice of Motion for impeachment of the President be J4 tabled is therefore illegal and without adherence to the basic and functional independence of the judiciary. According to the applicants, the Speaker's decision was tainted with procedural impropriety, thus null and void. The appellants took out a summons for joinder pursuant to Order 15 rule 5] of the High Court Rules Chapter 27 of the Laws of Zambia, and the inherent jurisdiction of the court. They sought joinder on the basis that they were the mover and seconder respectively of the Impeachment Motion subject of the judicial review proceedings before the court. Their interest included being allowed to defend any allegations as to the competence or otherwise of the motion. They asserted that they stood to be affected by the outcome of the proceedings in view of the possibility that it may result in the decision of the Speaker being quashed. Upon seeing this application, the applicants filed a notice of intention to raise preliminary issues on a point of law by way of objection to the application for joinder pursuant to the provisions of Order 53 rule 3(10) 6 as read with Order 14 A of the Rules of the Supreme Court. The issues raised were as follows: 1. That the joinder application amounted to forum shopping 11. The parties intending to be joined had no interest whatsoever in the subject matter. The proceedings were not challenging the presentation of the impeachment motion by them, but the decision of the Speaker of the National Assembly to entertain the tabling of the motion J5 iii. The application for joinder was irregular and speculative as it did not state in what capacity the 1st and 2 nd intended joinders desired to be joined to the proceedings iv. The joinder application before court was irregular and incompetent as it was anchored on the wrong provision of the law Upon considering the preliminary issues, the learned judge (Bobo J) came to the conclusion that the petition under cause No. 2016/CCZ/003 in the Constitutional Court revealed that one of the grounds complained of was breach of the Constitution and gross misconduct by the President. The matters here were the same as those in the petition. She also expressed the view that the intended joinders had applied to be joined to the proceedings not to protect their interests as movers of the motion in the National Assembly but to ensure that the proceedings instituted against the same opponent on the same matters may be heard, and a favourable decision obtained, if not from the high court, then from the Legislative arm of Government. Bobo J also expressed the view that the applicants sought to challenge the decision of the Speaker of the National Assembly on his decision to accept to table the motion when there were matters pending before the court on the same grounds. Continuing, the judge opined that the appellants would only be indirectly affected by the decision of the court, and that the person to be directly affected would be the Speaker of the National Assembly, whose decision was being J6 questioned. Therefore, they did not have sufficient interest m the matter, warranting that they be joined to the proceedings. Bobo J found the argument relating to the capacity in which the appellants were to be joined to the proceedings inconsequential, but held that the failure to cite the correct provision was fatal and incurable. She thus upheld the preliminary issues and dismissed the application for joinder with costs. APPEAL BEFORE THIS COURT The intended joinders have launched three grounds of appeal against the decision of the trial judge as follows: i. The learned trial judge erred in law and m fact when she upheld the respondent's first ground of objection to the applicant's application for joinder to the effect that the appellants had engaged themselves in forum shopping. ii. The learned trial judge misdirected herself when she held that the appellants had not demonstrated sufficient interest in the proceedings in the court below to warrant them being joined thereto. iii. The learned trial judge erred in law and in fact when she held that the application for joinder was fatally flawed on account of having been brought under a wrong provision of the law when in fact the appellants had invoked the inherent jurisdiction of the court in making the application. J7 iv. The learned trial judge erred in law and in fact when she dismissed the appellant's application with costs. APPELLANT'S SUBMISSIONS It was submitted in the appellant's heads of argument as follows: The judge in the court below misapprehended the facts surrounding the question of forum shopping, and exceeded her mandate by delving into the substantive matter in arriving at her decision. She ought to have restricted herself to the question of joinder. There was no evidence on which she could impute knowledge of the proceedings in the constitutional court to the appellants. Therefore, the court made a dangerous assumption not supported by any evidence before her. The court imputed commencement of the two actions in two different fora to the appellants, when the appellants were not parties to those actions. This was in defiance of logic, implying that the learned judge was laboring under a misapprehension of both fact and law. The parties to the proceedings in the constitutional court were different from the parties in the matter before the lower court save for the Attorney General in cause No 2017 /CCZ/004, the subject matter being the tenure of the President, distinct from the issue of impeachment raised in the National Assembly. J8 On the foregoing it was erroneou s to state that the opponent, Mr. Edgar Chagwa Lungu was being h a u led before d ifferent fora and that the a ppellants we deploying their grievances piecemeal in scatted litigation and fora. Th e finding th at: ''the i ntended joinders are applying to be joined to these proceedings not to protect their i nterests as movers of the motion i n the National Assembly but to ensure that proceedings i nstituted against the s ame opponent over the same matters may be heard a n d they may obt ain a favourable decision if not from this court, then from the leg islative arm of Government." was a complete misnomer and a misapprehension of the law . It was n ot only speculative and not factual but a lso totally miscon ceived as the process in the National Assembly is separate and distinct and seek s a completely different outcome from that which was before the court below in the substantive proceedings before it. While one sought impeachm ent of the President, the other sought an order of certiorari against the Speaker of the Nation al Assembly. It could n ot therefore be said tha t seeking to be joined to th e j udicial review proceedings a mounted to seeking th e sam e r elief from different fora. Development Bank of Zambia & Another vs Sunvest Limited2 , BP PLC vs. Interland Motors Limited and Others3 in which the common thread was that, unlike in the present case, th e offendin g pa rties wer e parties in one action and chose to commen ce oth er actions and proceedings in oth er fora in an effor t to frustrate the earlier actions, were dis tinguishable from this one. J9 The appellants, by seeking joinder to an action began by the respondents, avoided multiplicity of action by doing the opposite of what was done in the Mukumbuta case. The proceedings in this case were intended to have the decision of the Speaker to entertain the motion declared null and void ab initio and quashed on the ground that entertaining it was unreasonable, procedurally improper and illegal because the motion contained grounds that were the subject of proceedings that were pending before the constitutional court under cause number 2016/CCZ/0033 and 2017 /CCZ/004. The respondents sought to seal the fate of the whole impeachment motion on the ground that two out of seventeen sub grounds advanced were allegedly not properly put before the National Assembly. The high handed and carte blanche manner in which the respondents approached the matter should have put the trial judge on notice of the undesirability to only look at two sub grounds in determining the propriety, legality and reasonableness of his decision to entertain the motion. This should have allowed the appellants to argue that it was reasonable, procedurally proper and legal for the Speaker to entertain an impeachment motion substantially in conformity with \ the requirements of the law, as the two grounds that had been challenged could be severed from the motion if necessary, to avoid the entire motion being defeated. JlO The trial judge's approach to the question of sufficient interest was narrow, contrary to Order 53/ 14/24. As movers of the motion in their individual and personal capacities, the appellants have a direct personal interest in the relief being sought in the judicial review proceedings, which is ultimately that the motion should be tabled in the National Assembly. There was a direct relationship between the appellants and the tabling of the motion, which in turn is the subject matter of the entire judicial review proceedings in the court below. The appellants having met the criteria, should have been joined to the proceedings by the inherent power of the court to do so, pursuant to the rule in Mung'omba and Others vs Machungwa & Others4. The appellants' locus standi is even greater than that of the respondents, who may be said to be private Attorneys General. The court erred in treating the failure to cite the correct order relied upon in the application for joinder as fatal. It did not consider that the appellants cited the inherent jurisdiction of the court to join a party to the proceedings and its own motion. This was contrary to the case of The People vs the Patents and Companies Regist ration Agency Exparte Finsbury Investment and Another5, which enjoins that in circumstance as those here, a matter should be heard on the merits as opposed to being defeated for procedural irregularity. Jl 1 In matters such as this one, which border on public interest issues, costs should, as per established practice, be borne by each party, so as not to stifle litigants from litigating in the public interest. The application having wrongly been decided, the costs should follow the event. The third respondent's arguments as per the heads of argument, were as follows: Courts disapprove of parties commencing a multiplicity of actions over the same subject matter, per Development Bank of Zambia Limited and KPMG vs Sunvest Limited2 , and BP Zambia PLC vs Interland Motors Li mited3 . The intended joinders had filed the Motion of Impeachment in the National Assembly and cannot be given another forum to litigate over the same matters which are also before the Constitutional Court under the guise of being joined to the judicial Review matter before the High Court, which does not seek to challenge the impeachment motion. The intended joinders should have joined the proceedings before the constitutional court under cause number 2016/CCZ/003 and 2017 /CCZ/004 which are similar to the impeachment motion before the National Assembly instead of the judicial review proceedings which do not seek to challenge the relevance of the grounds for impeachment, but seeks to challenge the decision of the Speaker of the National Assembly to accept the motion for tabling when there are matters pending before court using the same grounds. Jl2 The subject matter of the judicial review proceedings was the exercise of powers of the Speaker of the National Assembly, a matter in which the intended joinder h ad n o interest. R vs Rent Officer Service, ex-parte Mulchoon6 , R vs Rent Officer Service, ex-parte Kelly6 referred to. The person to be directly affected was the Speaker of the National Assembly whose decision was being questioned. As the appellants would be indirectly affected, they did not have sufficient interest to be joined to the matter. The subject matter of the action was the exercise of the powers of the Speaker of National Assembly. The court below correctly determined the question of sufficient interest in accordance with Order 53 rule 14 (24) Rules of the Supreme Court. Although there is a direct relationship between the appellants and the tabling of the motion in the National Assembly, that is not the subject matter of the entire Judicial Review proceedings in the court below as th e subject matter is the decision of the honourable Speaker in the exercise of his constitutional powers. The Appellants do not meet the criteria for joinder to the judicial review proceedings. Judicial review being supervisory, and not concerned with the merits of a decision, is not an ordinary action between private individuals or an individual and an agency of the state. It would not be justifiable to join the appellants to the judicial review proceedings. The court was on firm ground in holding that it was fatal to bring the application under the wrong law. Jamas Milling Company Limited vs Imex International Limited7 , Access Bank Zambia Limited vs Group Five/Zcon J13 Business Park Venture8 referred to. The application should have been brought pursuant to order 53 RSC. The learned trial judge properly exercised her discretion in awarding costs to the respondents, per General Nursing Council of Zambia vs In'gutu Milambo Mbangweta9 and Afrope Zambia Limited vs Ant ony Chate and Others 10. ORAL ARGUMENTS At the hearing, reliance was placed on the respective parties' heads of argument. In response to questions from the court, Mr. Haimbe, learned counsel for the appellants, invited the court to take judicial notice of the record before the constitutional court, as the two matters there had been determined with finality. In cause number 2017 /CCZ/004, the eligibility case of the President to go for an additional term has been disposed of by the court by a final judgment unrelated to the questions now in the court below. Cause number 2016/CCZ/0033 was dismissed without the merits of the question as to whether or not the actions of the President violated the Constitution being determined . If the decision of the Speaker is quashed, the appellants being movers of the motion would have their personal interest directly barred. This is sufficient interest warranting joinder. J14 Learned counsel referred to Dan Pule & Others vs The Attorney General & Others11 , where the Constitutional Court held at J57, that: "The modern approach is to depart from the narrow confines of interest and allow the citizens of the country to bring whichever question before it." He argued that the intended joinders, being representatives of the people, have sufficient interest in the matter. The decision making process commenced when a motion was moved in Parliament, and his decision cannot be reviewed in isolation from the specific motion that was laid on the table of the house. On behalf of the 3 rd respondent, it was argued by Mrs. Chibawa, that the appellants were triavialising the sufficient interest test. It was not clear what sufficient interest the appellants were pushing before the court. The appellants seemed to think they had a better understanding of the contents of the motion before the National Assembly which the Speaker chose to entertain. Contrary to this view, the Speaker, with the Attorney General, was properly placed to speak to the propriety, lega lity and rationality of the decision that he took. She was of the view that caution ought to be exercised, and that in constitutional matters the test of what an interest would constitute, is quite different from what sufficient interest is in judicial review proceedings. Thus the court below was correct to refuse the appellants j oinder m the premises. J15 In response, Mr. Haimbe read Order 53 rule 2 RSC, and argued that there was a direct interconnection, association and interrelation between the rights of the appellants and the decision of the Speaker. DECISION OF THE COURT We h ave considered the arguments of the parties in seeking to impugn the decision of the court below. We are at pains to grasp the meaning of the 3 rd respondent's arguments on ground one. Forum shopping was imputed to the appellants, when they sought joinder to an action not begun by them, but by the 1 st and 2nd respondents to this appeal. The appellants were not party to the action in the constitutiona l cour t. The 3rd respondent was aware that the judicial review proceedings did not seek to challenge th e relevance of the grounds for impeachment. The judicial review concerned the decision of the Speaker to accept the Motion for tabling when th ere wer e matters pending before court on the sam e grounds. Despite this, the respondent argued t h at the movers of the Motion should have sought joinder to the cause in the Constitutional Court. We understand the 3 rd respondent's argument to be that the appellants h ad no interest in the matter, and should have ventilated their grievances elsewhere. It has not been shown however that the appellants were parties to other proceedings seeking the same relief. BP Zambia Plc vs Interland Motors Limited3 addresses forum shopping as follows: J16 .. "(i) A party in dispute with another over a particular subject should not be allowed to deploy his grievance piecemeal in scattered litigation and keep on hauling the same opponent over the same matter before various courts. (ii) The administration of Justice would be brought into disrepute if a party managed to get conflicting decisions which undermined each other from two or more different judges over the same subject matter." It will be observed that this decision addresses a situ ation involving several court proceedings on t he same subject m atter , leading to possible conflicting decisions. In the proposed judicial r eview in t his case, the lower court will be examining the decision making process, and n ot its merits. It will consider the grounds on which the Speaker's decision is being questioned by the applicants and not whether or not the conduct of the President is impeachable. By no m eans can this process b e equated to the m atter in the Constitutional Cou rt. We agree that the learned judge misapprehended the law in holding that the joinder was sought, "not to protect the a ppellants' interest, as movers of the Motion in the National Assembly but to ensure that proceedings instituted against the same opponents over the same m atter may be heard and they may ob tain favourable decision if not from t his court, then from the Legislative Arm of Government." The judicial review concerns the tabling of the Motion before Parliament by the Speaker. It would not culminate into a favourable outcome for the appellants, in the even t the judicial review succeeded , and the court granted the orders sou ght, the Motion as tabled would n ot be considered. It would be stopped in its tracks. Conversely, if the judicial review failed, the Motion would b e tabled J17 --. and consid ered in Pa rliam ent. Th ere was n o question th erefore of ob taining a favoura ble d ecision on th e substantive m atter from the High Court. We thus agree tha t ther e was no b asis to impute forum shopping to the a ppellant s . We move to cons ider the second ground of ap peal. This ground is on the issu e wh eth er or n ot t h e a ppella n ts h a d sufficien t interest. Perh aps a good starting point in con siderin g this issue is Order 53/ 14/24 which expla ins the m eaning of s ufficien t interest: "Sufficient interest" - the overriding rule governing the standing of the Applicant to apply for judicial review is that the court must consider that he has sufficient interest in the matter to which the application relates ... . , if the Applicant has a direct personal interest in the relief which he is seeking, he will very likely be considered as having a sufficient interest in the matter to which the application relates. If, however, his interest in the matter is not direct or personal, but is of general public interest, it will be for the court to determine whether he has the requisite standing to apply for judicial review. Clearly, the formula "sufficient interest" is not intended to create a class of person, properly referred to as a ''private attorney-general", who seeks to champion public interest, in which he is not himself directly or personally concerned, under the guise of applying for judicial review. The question of what is a sufficient interest in the matter to which the "application relates" appears to be a mixed question of fact and law, a question of fact and degree and the relationship between the applicant and the matter to which the Application relates, having regard to all the circumstances of the case ... .. The term "interest" should perhaps not be given a narrow construction, but should be regarded as including any connection, association. Sufficien t in terest was discu ssed in Inland Revenue Coms vs National Federation Interest of Self-employed and Small Business Ltd12. J 18 .. , . • The court held that the question whether for the purposes of RSC Ord 53, r 3(3) an applicant for judicial review had a 'sufficient' interest in the matter to which the application relates was not, except in simple cases where it was obvious that the applicant had no sufficient interest, a matter to be determined as a jurisdictional or preliminary issue in isolation on the applicant's ex parte application for leave to apply . Instead it was properly to be treated as a possible reason for the exercise of the court's discretion to refuse the a pplication when the application itself had been heard and the evidence of both parties presented, since it was n ecessary to identify 'the matter' to which application related before it was possible to decide whether the applicant had a sufficient interest in it. We acknowledge the accuracy of the court's view. We note however that the application for joinder was made after the 1st and 2 nd respondents had applied for leave to move for judicial review. The appellants were not the initiators of the application. It was therefore necessary to examine whether they had sufficient interest in the matter, warranting joinder. Instead of filing an opposing affidavit the respondents raised preliminary issues. This prompted the parties to m ake the same arguments they would have raised on the application for joinder. This was totally unnecessary. The application for joinder should have been argued instead. The appellants' premise for joinder is that they are the movers of the Motions as individuals. They have a direct personal interest in the relief being sought in J19 • • .. . the judicial review proceedings in the lower court, which is that the Motion should not be tabled in the National Assembly. Mung'omba and Others vs Machungwa and Ot hers4 provides guidance. In that case, the appellant had initiated complaints to the Chief Justice to appoint a Tribunal under the Parliamentary and Ministerial Code of Conduct Act, No 35 of 1994. When judicial review was launched concerning the matter, the appellants applied to be joined to the proceedings in the High Court. The learned judge acceded to the application, having formed the view that the appellants were interested parties as they had initiated the complaints under the Parliamentary and Ministerial Code of Conduct. His decision was upheld on appeal. Similarly in this case, the appellants were the movers of the Motion. They have sufficient interest in the matter, as the Motion they had presented is in issue. The court will consider whether the decision by the Speaker to table it was properly made. On the authority of the Mung'omba case, the appellants had sufficient interest in the matter. Ground two succeeds. Turning to ground three, we agree that it was erroneous to hold that the application for joinder was fatally flawed for having been brought under the wrong law. It is established that judicial review proceedings are governed by Order 53 RSC. Our High Court Rules are inapplicable. It is undeniable however, that according to Order 53 RSC, a party with a sufficient interest in a matter may apply to be joined to the judicial review. Although the appellants J20 .. approach ed the court under the wrong rule, they could have done so under the correct rule. The court having heard the application, nothing would have prevented it from making the Order pursuant to the correct rule. Zinka vs Attorney General13 refers. We therefore find merit in ground three. Turning to ground four, we agree that costs should not have been awarded to the respondents by the court below, so as not to stifle litigants. A leaf should have been taken from the approach of the courts in election petition matters. On the foregoing, the appeal succeeds. The decision of the court below is set aside. As the parties practically argued the joi~r, we add the appellants to the j udicial review proceedings as respondents, and remit the matter to the same judge for hearing. Although the appellants have succeeded, each party will bear own costs. . ............. ¥. .......... . F. M. CHISANGA JUDGE PRESIDENT COURT OF APPEAL J . Z. MULONG I COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J21