Geoffrey Bwalya Mwamba and Anor v The Attorney General (2016 /HP/ 0424) [2017] ZMHC 524 (29 December 2017)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: -;to1J1?ioj:~,~ ~RINCIPAI . 016 /HP/ 04 24 1l1a4 --~----- ~ - ~ ( ~ii1J1 f lg DEC 2017 Kh. '~J;,--.:1. I ' ,~ l<EG ISfRv / ~ .'a-O~~usf>-. V. Jr>->,~• " '~1)()67, L ~ The Constitution of Zambia, The Constitutional Act, Chapter 1 of the Laws of Zambia AND IN THE MATTER OF: Order 53 of the Rules of the Supreme Court (White Book), 1999 Edition, Volume 1 and 2 AND IN THE MATTER OF: Articles ll(a) and (d), 15, 17 and 18 of the Constitution of Zambia, The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia ~ AND IN THE MATTER OF: Section 12 of the State Proceedings Act, Chapter 71, Volume 6 of the Laws of Zambia AND IN THE MATTER OF: An Application for Judicial Review 'I' ,r- ... .... . - ._. \ . AND IN THE MATTER OF: A purported decision of the Respondent via the and Zambia the Drug Service Police Enforcement Commission to possess and occupy the Applicants property, being Plot No. 186 Luanshya Road, Villa Elizabetha, Lusaka . :.· , - _Jrom 27th FeA[. Uary:L;2016 to dat~:an.cJ.._to further issue a search warrant dated 1 st March 2016 to search for · <rl'fensive weapons ~d suspected drugs against the Applicants' property which has been under the Respondent's custody, control, care, possession, watch and guard since Saturday, 27 th February 2016 to date · ·,r BETWEEN: GEOFFREY BWALYA MWAMBA GBM TRUCKING LIMITED AND 1 st Applicant 2 nd Applicant THE ATTORNEY GENERAL Respondent Before the Hon. Mrs. Justice N. A. Sharpe-Phiri on 29th December 2017 For the 1 st and 2 nd Applicants: Ms. M. Mushipe of Messrs Mushipe & For the Respondent: Associates & Mr. L. M. Chikuta of Messrs Mumba Malila & Partners Mr. F. Imasiku, Principal State Advocate J I JUDGMENT Authorities referred to: 1. Th.e Constitution of Zambia, Chapter 1 of the Laws of Zambia 2. Th.e Zambia Police Act, Chapter 107 of the Laws of Zambia 3. Penal Code, Chapter 87 of the laws of Zambia 4. Supreme Court Practice (White Boole}, 1999 Edition Cases Cited ((- 5. North-Western Energy Co Ltd Vs Energy Regulation Board (2011) ZR 513 6. House of Joy Church International & Ministries Registered Trustees Vs the Chief Registrar of Societies and the Attorney General 2012/ HP/ 1465 7. Council of Civil Service Unions v Minister of State for Civil Service [1981] A. C. 363 This is an application for ,Judicial Review made by ex-parte summons on the 3 rd March 2016. Leave to apply for Judicial Review was only . - : ' gra n .t~d .91:1- the 17th Aµgus_t _.2017. The Qr:rgi.p._~ting Notice_qf M~.tion was ,r- subseG(Uently filed on 1·1 th September, 20j7. The reasons .f9'!" the rather unusual delay in disposing of these proceedings will become apparent in the account of events given hereunder. By this application, the Applicants seek the Court's review of the decision of the Respondent's agents to search the 2 nd Applicant's property on the 27th February 2016 without a search warrant; to take possession, custody and guard of the Applicant's premises without a duly issued Court Order and to attempt a second search of the Applicants premises for offensive weapons and suspected drugs under a search warrant dated 1st March 2016 when the Respondent's agents had already searched the premises. The Applica nts seek the following reliefs: a) An Order of Certiorari to move into the High Court for purposes of quashing the decision by the Respondent acting through its agents the Zambia Police Service and the Drug Enforcement Commission (DEC) to search the 2nd Applicant's premises situated Plot No. 186 Luanshya Road, Villa Elizabetha without a duly issued Court Order and to quash the same decision. b) An Order and Declaration that the decision to conduct a subsequent search of the 2°d Applicants premises situated at plot No 186 Luanshya Road, Villa Elizabetha by the Respondent's agents under a search warrant dated 1 st March 2016 for offensive weapons and suspected drugs when the said premises were already in the possession and custody of the Respondent's agents and a prior search already conducted without illegal and issued search warrant unconstitutional as it contravenes the prov1s1ons of the Constitution of Zambia and to that effect wholly null and void. duly is a c) An Order of Mandamus compelling the Respondent's agents to vacate and leave the Applicant's aforesaid premises. ff d) An:~_"Onjer of ProhiJHtiqn proscribirj:g _._the Respond~nt .. and his age,ts · from continling to unlawf~J}Y besiege, pos~ess,' guard, the Applica nts property for offensive weapons an! suspected drugs. e) The Applicant hereby requests the hearing of this application before the Judge of the High Court pursuant to Rule 3(3) of Order 53 of the Rules of the Supreme Court. f) If leave to apply is granted, a direction that such grant should ope rate as a Stay of the said decision and further proceedings on the same pursuant to Rule 3( l0)(a) of Order 53 of the Rules of the Supreme Court. g) If leave to apply is granted, a direction that the hearing of the application for judicial review be expedited. h) An Order for Costs. i) And that all necessary and conseque ntial directions be given. J 3 The Applicants advanced four grounds in support of the applica tion namely that the decision of the Respondent's agents to search their premises was illegal, m excess of their jurisdiction, irrational, procedurally improper and in breach of legitimate expectation. The detailed particulars of these grounds as advanced by the Applicants will be highlighted in the course of the judgment. The background to the hearing of this matter is long but necessary to place on record to account for the extraordinary length of time it has taken to dispose of this application for judicial review. The applica tion was brought by way of ex-parte summons on 3 rd March 201 6 . The Court directed that the matter be heard inter-parte on the 4 th March 201 6. At the inter -par te hearing, the Respondent's Advocates requested an adjournment to obtain their client's instructions. The m a tter was a djourned to the 11 th March 2016 . .. - 'I" While the matt M stood adjourned for hearing, the Applicant filed -_an ..... ' .. . - -.. amen ded Notice containing statement and an affidavit in support of the a p plication for leave to apply for Judicial Review on the said 4th March 201 6. The Respondent filed an application to strike off the amended Notice and the amended affidavit on 7 th March 2016. The application to strike out came up for hea ring on 15th March 2016. Counsel for the Applicants, Mr. Chikuta sought an adjournment to enable the Applicants file a further affidavit and supplementary arguments. The matter was rescheduled to the 12th May 2016. On that date, Counsel for the Respondent, Mr. Hamanyati was present but the Applicants were absent. J4 .. r.'!.'\,. ~~~--. _:;~ 4 ).;,"r ;-. . J No explanation was given for the absence of the Applicants, the Court struck out the action with liberty to apply to restore within 21 days failing which the action would stand dismissed. There having been no application to restore within the stipulated time frame, the matter was dismissed on the 3rct June 2016. An ex-parte summons for review of the order dismissing the matter was brought on the 9th June 2016. It was supported by affidavit. Having heard the application, the Court reviewed its earlier order a nd set aside the said Order dismissing the action. It further directed that the application to r estore matter to active cause list be heard on the 31 st August 2016. On that day, Counsel for the Applicant was not present, but requested for an adjournment through Mr. Phiri of Messrs Mushipe and Associates. The matter was initially scheduled for hearing on 4 th October 2016 but was rescheduled to the 30th November 2016 on account of election p etitions. On the said date, Counsel for the . : · Applicant, Ms. -l'V. Iushipe was present..and the applic,atio.n to restore -~as_ .. . . . . . . ·irheard and m at~r restored to t.i1e active cause ·1n1st. The case wds rescheduled for hearing on 7 th December 2016. On the said date, the Respondent's application to strike out was adjourned at the instance of (u Counsel for the Applicant, Ms. Mushipe who had not had an opportunity to review the application. The matter was adjourned to 30th January 20 17. On that date, the parties notified the Court that they were exploring ex-curia settlement. The Court matter was adjourned to the 20th March 20 1 7. The parties filed a Consent Order on the 1 st February 2017. By that Consent Order, the parties agreed that the Respondent's application to strike out the Notice be withdrawn and the amended notice containing the statement and affidavit in support of 4th March 2016 be allowed. J 5 Following the said Consent Order, the Applicants filed an affidavit in reply to the Respondent 's affidavit in opposition to Originating Notice of Motion for Judicial Review and the matter was then scheduled for hearing of the application for leave for Judicial Review on 20th March 2017. On the said date, Counsel for the Respondents was absent. The Applicant sought an a djournment to enable the parties file submissions. The Court allowed the application and directed the parties to file their submissions within 14 days from the date thereof the application. The Court a lso lamented about the numerous ' - adjournments sought by the par ties. The matter was scheduled for hearing on the 22nd May 2017 . On the said date, Counsel for the Applicants pointed out that they had n ot complied with the earlier order of Court a nd r equested for more time to file s ubmissions. The matter was accordingly a djourned. ,r- Ther eafter, on the 26u1 May 2 01 7, the Applica nts filed an application to . ,. amend their statem_ent in suppo(t 9J. the applica~i©n f~[ leave to apply -~ for Judicial Rev1€w . The a pplica tiffn wa~· schedul~-~~~ .b·e ·heard o~-1)-~- ·,: 15th August 2 01 7. The Respondents sought another a djournment to W r eview the application and explore an ex-curia settlement of the matter. The case was adjourned to the 17th August 2 017. The Applicants filed skeleton arguments in support of notice of intention for leave to amend s tatem ent in s upport of a pplication for leave for Judicial Review. The matter wa s h eard on the 1 7 th August 2 01 7, the Court proceeded to hea r both a pplications for leave to amend and for Judicial Review. The Respondent did n ot object to the applications. Being satisfied that the Applicants had m a d e out a n arguable case fit for further determina tion at a full h earing, the Court gr anted the applications sought by the Applicants. J 6 ~~! .. - ....... , . ----11-.. The Applicants filed an amended notice containing statement in support of the application for leave to apply for Judicial Review and a further affidavit. The Court further directed that the matter be heard on the 11 th September 2017 upon filing of all necessary documents by the parties. On the said date, the matter could not be heard as the Applicants had not filed the Notice of Motion. The Applicants were directed to comply with the Court Order. Following this direction, the Applicants filed the Originating Notice of Motion for Judicial review on 13th September 2017. The matter was h eard on the 6th October 2017. In support of their case, both p a rties relied on the affidavit evidence on record and the skeleton arguments and submission filed by the respective counsel. I am indebted to counsel for their submissions. They have all been given due ~· · , consideration in, arriving at this judgment. ~· ~· ,,.. ~ v ·v Cu I h ave car efully reviewed the affidavit, evidence and th e arguments of the respective parties. The Applicants have advanced fou r grounds on which they seek Judicial Review, namely illegality, excess of jurisdiction, irrationality, procedural impropriety and breach of legitimate expectation. All the grounds advanced by the Applicants were opposed by the Respondent. In support of the claim, the Applicants filed an affidavit in support of the summons for leave for Judicial Review on the 3 rd March 2016. This affidavit was later amended through an affidavit filed on 4th March 20 16. They also filed a further affidavit on 1 7 th August 20 1 7 . J 7 All the Affidavits were sworn by Geoffrey Bwalya Mwamba, the 1 st Applicant herein. The gist of his evidence as contained in the said affidavits was that he was the 1 st Applicant, Director and shareholder in the 2nd Applicant company and that between 07:00 and 08:00 hours on Saturday 27th February 2016, a combined team of officers from the Zambia Police Service and the Drug Enforcement Commission (DEC) took occupancy and possession of the 2nd Applicant's property known as Plot 186 Luanshya Road Villa Elizabetha Lusaka without a Court Order and proceeded to search the said premises, without a search warrant and in the absence of the Applicants. That the Zambia Police Service and DEC officers then apprehended and arrested 21 employees of the 2nd Applicant who were on the said property and charged them with Unlawful Drilling and being in possession of suspected drugs. He contended that the employees were not conducting any illegal activities on the said pre1nises and that when the search was taking place he was away on the Copperbelt on political campaigns. H e stateclf further that he -was requested to-l!'teport to Woodlat1ds Police Station for questioning and that he attended on the 2 nd March 2016, whereupon h e was charged and arrested for the offence of Unlawful (U Drilling contrary to Section 66(1)(a) as read with Sections 21(c) and (d) and 22 of the Penal Code, Chapter 87 of the Laws of Zambia. Following his arrest, h e said he was detained in custody and subsequently issued with a search warrant to search Plot number 186 Luanshya Road Villa Elizabetha Lusaka for offensive weapons and suspected drugs. The s earch was to be carried out on the 3rd March 2016 at 14:30 hours but has not been effected. He stated further however, that the Respondent's agents and servants have continued to k eep guard, custody and possession of the Respondent's premises from 27th March 2016 to date. J 8 He also recounted that he tried but in vain to r eason with the Respondents agents or servants of the Zambia Police S ervice and DEC that the search warrant dated 1st March 2016 authorising them to search the property and its premises aforesaid was illegal, unreasonable and procedurally improper as the Police Service and the DEC had already searched and taken possession, custody and control of the said property. He was also apprehensive and suspicious that the Respondent's servants or agents aforesaid might have tampered with the said property by planting the said offensive weapons and/ or suspected drugs in order to incriminate and incarcerate him. He contended further that there were constitutional illegalities, irregularities, abuse, excess of jurisdiction and unreasonableness in the conduct of the Respondent's s ecurity agents as the 2 nd Applicant's premises were in .,- possession and custody of the Respondent's agents. He therefore sought · Judicial Review ·t-0 d~termine the Jeg.a_h_ty _ of the a,<;:ti9.µs _ and conduct 5f the Respondenifs agents. . ·-,r . Y The Resp ond ents filed an affidavit in opposition to the summons for 'U leave for Judicial Review on the 20 th January 2017. The affidavit was sworn by Mubita Moya Detective Chief Inspector of the Zambia Police Service . His evidence was that on 23rd February 2016, the flying squad received information that the 1st Applicant had persons on his premises said to have con cealed offensive weapons and drugs. That acting on this information, they proceeded to conduct a search at the premises to prevent an a rmed insurrection tending to cause disruption and public disorder. J 9 ., The Respondent's d eponent stated further that search warrants were prepared and on Saturday 27th February 2016 a team of officers was constituted and detailed to conduct a search on tha t date. He further stated that Detective Inspector Mwiya Mutakala executed the search warrants on the aforesaid premises which were received by a Mr J acob Mtonga who introduced himself as District vice Youth Chairman in charge of politics for the UPND. His further evidence was that during the said operation by the Respondent's agents, 21 persons who were found on the premises were • charged with the offense of Unlawful Drilling contrary to Section 66 of the Penal Code Chapter 87 of the Laws of Zambia. He also stated that the said Mr. Jacob Mtonga was handed over to DEC by the police after the vehicle he was being driven in was found to have suspected cannabis. He was subsequently charged for trafficking in p sychotropic subs tances. He stated that other items said to h ave been found during the said_,,..sear.ch were machetes, 8 rounds,,..of ammunition and other : -· ...... . - .• · &. • ' · ·~ -- -- : ; • • : : .· . - • • · I.. . rt" offe n sive·~ ,eapon s . He Stc!fed further that _ the 1 s t · Applicant wa-=-s also T(" y s ubsequently a rrested for aiding and abetting persons suspected to b e training in the use of arms or practice of military exercise involvements or evolutions con trary to Section 66(1) of the Penal Code as read with Section 21(1)(c) of the Penal Code and that the 1st Applicant and the other persons arrested on the 27th February 2016 appeared before the Magistrates Court on 1st March 2 016 . In concluding, h e contended that contrary to the Applicants assertion that the search was illegal and improper the Police had acted within t h eir powers based on reasonable suspicion. He also stated that with regard to the second search t h e same did not m aterialize and that the Applicant's property was n ever search ed on 3rd March 20 16. J 10 v I have carefully considered the affidavit evidence of the parties. I have also considered submissions made by Counsel for the Applicants and for the Respondent. The undisputed facts leading up to this application are that on the 27th February 2016, the Respondent's agents entered the Applicants property and carried out a search and took occupation and possession of the said property known as Plot 186, Luanshya Road, Villa Elizabetha, Lusaka and continued to do so to date. This prompted the Applicants to bring this application for Judicial Review. In seeking Judicial Review and the reliefs hereunder, the Applicants have argued that the decision and conduct of the Respondent's agents or servants was illegal and in excess of jurisdiction, irrational, procedurally improper and amount to a breach of the Applicants legitimate expectation . . ,. ..... .. . - - . . - -. · ... - _ .... .,,.. The undc~ y ing objective of,,.the remedy of J1¥1icial Review is t.pe pov.rer of the Courts to ensure that the exercise of administrative authority by public officers is done within the confines of the law. It is important to understand the scope of Judicial Review. Order 53/14/19 of the Supreme Court Practice, 1999 edition, sub heading entitled nature and scope of judicial review at page 902 provides that: 'The remedy of 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. 'It is important to remember in every case that the J 11 purpose of [the remedy of judicial review] is to ensure that the individual is given fair treatment by the authority to which he has been subject and that it is not part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.' (Chief Constable of North Wales Police -v Evans [1982] 1 W. L. R. 1155 at 1160; {1982] 3 ALL E. R. 141 at 143, per Lord Hailsham L. C.). Thus, a decision of an inferior court or a public authority may be quashed (by an order of certiorari made on an application for judicial review) where that court or authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where those rules are applicable, or where there is an error of law on the face of the record, or the decision is unreasonable in the Wednesbury sense (see para. 53/14/27). The court will not, however, on a judicial review . : · application act as_ a 'court of.dppe_al' from the.1;,o.dy _.concerned;:_· . -.. _ • v nor will the codrt interfere in ooy way with thet'exercise of any ·--r power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body's jurisdiction, or the decision is Wednesbury unreasonable. The function of the court is to see that lawful authority is not abused by unfair treatment. If the court were to attempt itself the task entrusted to that authority by the law, the court would, under the guise of preventing the abuse of power, be guilty itself of usurping power (Chief Constable of North Wales Police -v- Evans [1982] 1 W. L. R. 1155 at 1173; [1982] 3 ALL E. R. 141 at 154, per Lord Brightman).' J 12 The Applicants have canvassed four grounds under which they seek the reliefs sought against the Respondents. Being fully alive to the extent of responsibility of this Court in Judicial Review applications as guided above, I will address the evidence, submissions and the law regarding the said grounds here below beginning with the second ground of procedurally impropriety. 1. PROCEDURAL IMPROPRIETY The Applicants have advanced two arguments under this head of • procedural impropriety. These are that: 1. The decision by the Respondents agents the Zambia Police Service and the Drug Enforcement Commission (DEC) to take possession, . :· oc9upation, gua,'rd .aJld custody .of th~ ,premises o.f.:fhe .2 nd Applicant'.· .. - ·v'from 2 7 th Februm-y 2016 to date.without a duly isS10ed Court Order·-ir .. . 1s procedurally improper in that it violates the procedural requirem ents of the law; and 11. That the decision by the Respondents agents the Zambia Police Service and the Drug Enforcement Commission (DEC) to issue a search warrant to search the 2 nd Applicants property and premises despite being in occupation of the same and having already conducted a search of the premises without a search warrant is procedurally improper in that it violates the standard notions of fair procedure and the said decision has caused injustice. J 13 In responding to the Applicant's contention that it has acted procedura lly improper , the Respondents a rgue th at the said search of the 2 nd Applican t's premises was conducted in con formity to the pr ovisions of Section 15 of the Zambia Police Act and that a reading of Subsections (1) and (5) of Section 15 em power s the Police to conduct a search with out undue delay. They contend further that the said section obliges an investigating officer who conducts such s earch to record his reason for t he sear ch and its findings a nd present them before the n ear est Magis trat e . Such a • record is available on application, to s u ch party who is owner of the property so searched. Th e Respondent concludes by contending that its agents or ser vants did n ot breach procedure wh en conducting the search on th e 2°d Applican t's premises on 27t h February 2 01 6 . The Applicants argued that th e law places a m andatory obligation upon th_e· _agents of the :'_R\;_sponden t to .. e.hsu pe that searth .-. \1/:arrant s are.::· . - .. pr~erly issued. ThG/1 contend that the p rovisions of Seiction 15 of the .·< Police Act prescribe procedures to be followed prior t o conductin g a search. When consideri ng what constitutes procedural impropriety , the words of Lord Diplock in th e leading case of Council of Civil Service Unions are th at: 'I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice of 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 J 14 administrative tribunal to observe procedural rules that are expressly laid down in the legislative instruments by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.' In addressing this issue, I am also guided by the words of Lord Hailsham, L. C. in the case of Chief Constable of North Wales Police v Evans, where he stated that: • 'It is important to remember in every case that the purpose of (the remedy of judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.' Thy-foregoing author.j.ties expound tha~procedural impropriety refers to . Y the failure by a public authority to observe procedural rules that are expressly laid down in the legislative instruments by which its jurisdiction is conferred. _,,. ... ...... . . - ._ ..... Therefore, the question before me is whether, in exercising their powers, the agents of the Respondent observed the expressly laid down procedures prior to a nd follm1/.ing the search being condu cted on the Applicants premises. The Respondent has contended that it invoked its authority under Section 15 of the Zambia Police Act. J 15 ·• For th e sak e of clarity, the s a id Section 15 of the Act is reproduced h er e below: '15.(1) Whenever a police officer, of or above the rank of for believing Inspector, has reasonable grounds that anything necessary for the purpose of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, that police officer may, after recording in writing the grounds of his belief and specifying therein so far as possible, the thing for which search is to be made, search or cause search to be made for such thing in any place within the limits of such station. (2) .t1:·pp~ice officer . Jt~O. Cf!!f!,ding undet,· s.u'l,~ection (1) . $hal_l,. if' p ractv:able, conduct tfte search in perston. ·v (3) If a police officer proceeding under subsection (1) is unable to conduct the search in person and there is no other person competent to make the search present at that time, he may, after recording in writing his reasons for so doing, require any police officer subordinate to him to make the search, and he shall deliver to that police officer an order in writing specifying the place to be searched and so far as possible the thing for which search is to be made, and that police officer may thereupon se arch for the thing in the place so specified in the order. J I 6 (4) The provisions of the Criminal Procedure Code relating to search warrants shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under subsection ( 1) or (3) shall forthwith be sent to the nearest magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the magistrate. (6) The occupant of the place or some other person on his behalf shall in every instance be permitted to attend during the search. (7) Any police officer conducting a search of any private premises under the provisions of this section shall produce his polic;e identity .([.ar.d_ .. to any pefson. · in or about.--the .. premi~s who may wisf[ to confirm the·authority of the·ipolice . . -· . . . . . . ... . officer, and any officer required to make a search of private premises under the provisions of subsection (3) shall in addition carry with him upon such search the order in writing mentioned in the said subsection. Subsection (1(, (2) and (5) of Section 15 of the said Act requires that for a search to be conducted withou t u ndue d elay, a p olice officer must prior to conducting such search, record in writing the thing for w hich the s earch is to be m a de a nd the grounds of h is b elief th at the thing to be search ed may be obtained in a place within the limits of the police station of which he is in charge or attached and that it cannot otherwise be obtained with out undue delay. The Police Officer may conduct the J 17 ., search in person after proceeding as above. Further, a copy of any record made under subsection ( 1) or (3) shall be sent to the nearest Magistrate. In the present case, although the Respondent's evidence in the affidavit in opposition of 20th January 2017 clearly states that they obtained a search warrant before condu cting a search on 27th February 2016, the warrant was not produced before this Court and Counsel for the Respondent argued to the contrary that it was empowered to conduct a search under the above section without delay . A further review of the Respondent's affidavit in opposition does not revea l that the agents of the Respondent's carried out any of the procedures prescribe in the provisions of Section 15 of the Police Act. There is no evidence of any report or record having been compiled by the investigating officer who conducted a search on the 2 nd Applicant's . premises o_q '27~. F~bruary 2. Q_i6., _neither have ·ftiey, . .testified tha("sucJ;-a_ report w as -~repared and fileil before a Magistrate. Furthermo:Pe, it is clear that the Respond ent's evidence on record contradicts the arguments advanced by Counsel representing the Respondent. I find that this argum ent of the Counsel appears to be an afterthought intended to cure the impropriety on the part of its agents or servants. For the foregoing reasons, I therefore find that the Respondent's agents breached la id down procedure. This ground of procedural impropriety therefore succeeds. In any event, Subsection 4 of the said Section 15 of the said Act also provides that the provisions of the Criminal Procedure Code relating to search warrants shall apply to a search made under this section. The provisions of the Criminal Procedure Code relating to search warrants shall be addressed under the next ground of illegality. J 18 • .,I --:-r, ~~, ... 2. ILLEGALITY AND EXCESS OF JURISDICTION The Applicants contention in the amended Notice of 17th August 2017 under this ground of illegality is based on the following two allegations against the Respondents that: i) The d ecision to conduct a search on the 27th February 2016 without a duly issued Court Order by the Respondent's agents the Police Service and the Drug Enforcement Commission (DEC) is an abuse of their discretion to exercise their power in that the same was used unlawfully hence illegal; and ii) The decision to take possession, occupation, guard and custody of the Applicant's property from the 27th February 2016 to date without a duly issued Court Order to that effect contravenes t h e Applicants inviolable right to private prop erty ¥.rithout reasonable justification. The actiofis _oJ the Respond·en.t;s a _gents are .1llegal, in bad faith -and .· in violatiot1 of its constitutioflal rights. • -v · ·v • For purposes of context, t h e law p ertaining to the ground of illegality was ably can vassed by my learned b r other Matibini, J as he th en was in • the case of North-Western Energy Company Limited Vs Energy Regulation Board. He stated that: 'Under the ground of "illegality" the Court seeks to establish whether a decision-maker has acted within the purview of the law that regulates his decision-making power and has consequently given proper effect to it. Thus an administrative decision or action is flawed and illegal, if it falls outside the parameters of the law that regulates the exercise of the J 19 J .-·~i, ){"r ;~ . .,_ - ~- . power. According to Harry Woolf, Jeffrey Jowell and A ndrew Le Seur, De Smith's Judicial Review, sixth edition, (London, Sweet and Maxwell, 2007), in paragraph 5-002, at page 225, a decision is illegal if it: a) contravenes, or exceeds the terms of the power which authorises the making of the decision; b) pursues an objective other than for which the power to make the decision was conferred; c) is not authorised by any power; and d) contravenes or fails to implement a public duty. The learned authors of De Smith's Judicial Review, (supra) further state in paragraph 5-003, at page 226, as follows: that the task of the Court in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring t he :duty or power. q..po:n: . the decisio'Ji-m~ker. The inJ;tr.u_ment will .. :,· .. _.,. nornrally be a statu~, or statutory ·instrument. Therteourts when . ·,r exercising this power of construction enforce the rule of law by requiring administrative bodies to act within the ''four corners" of their powers or duties. They are also acting as guardians of parliament's will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of parliament's • enactments. The learned authors of De Smith's Judicial Review,(supra) go on to state in paragraph 5 -004, at page 226, that: this task is made easier where the purpose is clearly defined, or where the considerations which the body must take into account in arriving at its decision are clearly spelled out. In such cases, the Courts require the decision-maker to take into account the specified considerations, and ignore the irrelevant ... ' J 20 The foregoing authority refers to illegality where a decision or act by a public authority falls outside the law that regulates the exercise of that power. It also refers to a decision of a public authority which contravenes or exceeds its jurisdiction. The Applicants contend that the purported decision by the Respondent's agents to search the 2nd Applicant's property on the 27th February 2016 without a search warrant, to tak e possession, custody and guard thereafter without a duly issued Court Order and to issue a search warrant on 1st March 2016 to search for offensive weapons and - suspected drugs when the Respondent's agents had already searched the said premises was illegal. The que stion that anses 1s whether the Police or Drug Enforcement Officers are empowered to search premises without a search warrant and to take posse ssion or control of such premises thereof without order..--0f the Court. ·v .... . .,,, . ' ,, . ... ...... . - ' · ·-.r .., -. . ,,. .. ..,,,J .. .,. .......... . - .:.. · '- . The Re spond ents c ontend in their affidavit in opposition filed into Court on the 2 0 th Janua ry 2 017 that prior to conducting the search , search wa rra n ts we re prepared on 27th February 2016 and a team of officer s were constituted a nd d etailed to conduct a search on that date. Th e Respondent's agents further contend that Detective Inspector Mwiya Mutakala proceeded to execute the search warrants on the Applicants premises . It is not in contention that the Respondent's acting through their agents, d id carry out a search on the 2 nd Applicant's premises on th e 27th February 20 16 and that from that date, the Respondent's agents have con tinued in possession and occupation of the said premise s. J 2 1 Although the evidence of the Respondent indicates that a warrant was prepared, the Respondent h as not exhibited a copy of the said search warrant tha t was purportedly executed upon the Applicants premises. They have a lso not produced any subsequent report of the said officer to prove this. Further, Counsel for the Respondent h as contended to the contrary in his submissions that the search was carried out without undue delay pursuant to the provisions of Section 15 of the Police Act. It is therefore apparent that this search was carried out by the Respondent's agents on the 2nd Applicants property without a search warrant. The Applicants contend further that after the search was carried out, the Respondent's agents retained possession, control and guard of their premises from 27th February 2016 to date. The Respondent did not deny this allegation that it has retained control and possession of the 2 nd Applicant's property known as Plot 186, Luanshya Road, • . Villa Elizabetha, . J:,usaka. .. ... ~ -. ·• ' ,,.. .. " . . :· ,- ___ ,_ ...... . - The Resp ondent contends in their arguments of 21 st September 2017, that they a rc empowered by subsection ( 1) of Section 15 of the Zambia Police Act to conduct a search without undue delay. The question tha t arises under the ground of illegality is whether the Respondent's agents that is, the Police or Drug Enforcement Officers are empowered by that provision or any other to conduct a search of a property without a search warrant and to retain possession or control of such property without order of Court. J 22 i;.;-.,. __ __,. ~ ... - -~ ... ·--··• ... . _ • . . ✓ , . ·_ Article 17 (1) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia provides as follows: 'Except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises .... ' It is trite law that an exception to this constitutional rule is wh ere a search warrant has been properly issued. On the power to issue search warrants, Section 118 of the Criminal Procedure Code, Chapter 87 - of the Laws of Zambia provides as follows: 'Where it is proved on oath to a magistrate that, in fact or according to reasonable suspicion, anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into t .. ,,_. ~flny offence .. . .,... ;ec~ptacle or p~,ce~ the magistrtte· ·may, by wavant {called i~. in any build,ing, vessel, ca.r.riage, box, . ..... - . . ,-_ ·:: ~ .,. - . . - ...... a search warrant), authorise a police officer or other person therein named to search the building, vessel, carriage, box, receptacle or place (which shall be named or described in ~ the warrant) for any such thing, and , if anything searched for be found, to seize it and carry it before the court of the magistrate issuing the warrant or some other court, to be dealt with according to law.' The above authorities make it mandatory before any entry, search and seizure is effected, a police officer must first obtain a search warrant as stipulated by Section 118 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia. J 23 As aforementioned, there is no evidence of a search warra nt having been obtained by the Police Officers enabling and empowering them to conduct a search the 2nd Applicants premises on the 27 th February 2016. Further , there is n o court order or notice a uthorizing the seizure, possession and/ or control of the Applicants property know as Plot 186, Luanshya Road, Villa Elizabeth, Lusaka from 27th February 2016 to date. Article 16 of the Constitution of Zambia provides protection from deprivation of property. It states thus: 'Except as provided in this Article, property of any description shall not be compulsorily taken possession of, and interest in or right over property of any description shall not be compulsorily acquired, unless by or under the authority of an Act of Parliament which provides for .r- payment:r. of adequate p,ompensation fp_r the property. or interest ·';[ right to be ta~.,fn possession o{.or acquired.' _ ·-.r - - .... . _-1o. ... ..... . .· - • . ... ~~ . - - ' (fl Under the a bove provision, property cannot be acquired or taken possess10n of, unless under some authority of an Act of Parliament which provides for s u ch . Counsel for the Respondent has suggested that the properly has been seized as it forms part of the evidence in criminal proceedings in the lower court. However, this was not the evidence of the Respondent and a notice of seizure was not produced before the Court. The Respondent has not demonstrated that they are lawfully entitled to retain possession and/ or control of the 2 nd Applicants property known a s Plot 186, Luans hya Road, Villa Elizabetha, Lusaka. J 24 In conclusion, I an1 of the considered view that the decision to conduct a search on the 2nd Applicants property on the 27th February 2016 without a search warrant and the continued possession and control of the 2nd Applicant's property is illegal. 3. IRRATIONALITY The Applicants have canvassed two main arguments under the ground of irrationality namely that: i) The decision by the Respondent's agents the Zambia Police Service and the Drug Enforcement Commission to have issued a search v.rarrant on the 1st March, 2016 to search the 2 nd Applicants property and premises for offensive weapons and suspected drugs on the 3 rd March 2016 when they had already taken possession, occupation, guard and custody of the same property without a Court Or~erJrom 27th of . F:_-eb.:r::4a,ry 2016 an~;t"a,lr~ady conductf~d.a,. . . . . ·.• . . . -· search wi~out a Court iss:t:Qed search warranris irrational andvthe pervcr s i ty of the decision is extreme in that no reasonable body would have m a de s uch a decision; and ii) The decision by the Respondent's agents the Zambia Police Service and the Drug Enforcement Commission (DEC) is irrational in that it violates the basic judicial values in that t he Respondent's agents are using administrative powers for purposes of punishment. The Court takes judicial notice of its previous decision in the case of the House of Joy Church International & Ministries Registered Trustees Vs the Chief Registrar of Societies and the Attorney General in which it quoted from Lord Diplock in the leading case of J 25 - . .. t~ . . f~ L"r .- J • Council of Civil Service Unions who s ummarized the basis for Judicia l review pertaining to the ground of irrationality in the followin g words: 'By 'Irrationality' I mean what can by now be succinctly referred to as 'Wednsedbury unreasonableness' (see Associated Provincial Picture Houses Limited Vs Wednesbury Corp (1947) 2 All ER 680). 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 the category is a 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.' Under this ground, I wish to repeat that I have already found tha t th e action s of the Respondent's agents of searching the 2 nd Applicant's -<- premises witho,ut P- .search warr~t .and taking P. O§'S<;:.s~ion, custodyJ:1.nd_. . ".; . . . . . . . v guard thereof a~er conducting th~ search was illeg~. The Applicants argue under this h ead that the Respondent's decision to issue a search warrant on 1st March 20 16 for the purpose of condu cting a second search of the 2 nd Applicant's premises when they had already searched the Applicant's premises and retained custody, possession and occupation thereof is irrational. They also argue that this decision violates basic judicia l values. The evidence of the Applicants shows that a search warrant was indeed issued by a Magistrate of the 1st class of the Subordinate Court on the 1s t March 2016, ba s ed on informa tion made on oath by one Detective Chief Inspector Moya to the effect that, offensive weapons and J 26 suspected drugs are concealed 111 the premises of the 1 s t Applicant. This warrant was issued after the Respondent's agents had already conducted a search of the premises on the 27th February 2016. The question for my consideration is whether the decision to issue this warrant to search the property for the second time, is so outrageous in its defiance of logical or accepted moral standards that no sensible person who had applied his mind to the question could have arrive at it. The Respondent has not specified the basis for securing a search warrant on the 1 st March 2016. Counsel for the Respondent has simply argued that the second search never materialized and therefore this ground has no merit. e In reviewing this ground, it is clear that the search warrant of 1 st March 2016 was not executed and that the Applicants were not affected by the issuance of this warrant. I therefore agree with the Respondent's ,,_ c;o_unsel on thi~'·gr:o.und that the:sc:;cqnd search di.~ no_t .materialize.. J;ind ._ . ~ that this a rgument is without IT.11Crit. This ground·lttherefore fails a..ml I dismiss it accordingly. 4. BREACH OF LEGITIMATE EXPECTATION Under this ground, the Applicants have argued that the decision by the Respondent's agents the Zambia Police Service and the Drug Enforcement Commission (DEC) to take possession and occupancy of the 2 nd Applicants property without a Court Order and also conductincr b a search of the same property without a search warrant is unfair and in breach of what the Applicants reasonably expected. J 27 The term legitimate expectation was expounded by the learned author of De Smith's Judicial Review, 6th Edition at page 610, paragraph 12-003 as follows: 'The term "legitimate expectation" first made an appearance in the context of procedural fairness in Schmidt v Secretary of State of Home Affairs (14). A foreign student sought review of the Home Secretary's decision to refuse an extension of his temporary permit to stay in the United Kingdom. In rejecting the student's contention that he ought to have been afforded a hearing, Lord Denning, M. R., said obiter that the question of a hearing "all depends on whether he has some right, or interest, or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.' The learned a uthors of De Smiths Judicial Review observe 1n .,. paragr:~h 12-001, at P?-ge __ Q99: 'That since the early 1970's one of the principles justifying the imposition of both procedural and substantive protection has been "legitimate expectation". Such an expectation arises where a decision-maker has led someone affected by the decision to believe that he will receive, or retain a benefit, or advantage - including that a hearing will be held before a decision is taken. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in government's dealings with the public.' J 28 The learned a uthors of De Smith's Judicial Review also go on to state in pa r a gra ph 12-004, at page 6 10: 'that the doctrine of legitimate expectation derives its justification from the principle of allowing the individual to rely on assurances given, and to promote certainty, and consistent administration.' And further at p age 6 11 paragraph 12-006 that: 'The first attempt at a comprehensive definition of the principle of legitimate expectation was provided by the House of Lords in Council of Civil Service Union v Minister for the Civil Service (supra). A bare majority of their lordships rested their conclusion on the fact that, but for national security, there would have been a duty on the minister to consult within the union on the ground that the civil serv,,ants had a • .... • • - • • ._ •~ • • - •. l ♦ .... • ~- - • : ~ leq.itimate expect~ion that they -J'lould . be consu_ved before their trade union rights were taken away. Lord Diplock stated that for a legitimate expectation to arise, the decision: 'Must affect [the] other person... by depriving him of some benefit, or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy, and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received an assurance from the decision-maker that it will not be withdrawn J 29 without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.' The Respondents have argued under this ground that the ground of legitimate expectation as canvassed in the North-Western Energy Company Limited case must be understood in context. They fortified this argument by stating further that this ground cannot be sustained where a greater public interest as opposed to an individual interest is at stake. In considering this ground of legitimate expectation under judicial review, the Court is required to scrutinize a decision as to whether it has disappointed a legitimate expectation a nd whether such disappointment is unlawful. In the present case, the Applicants have simply argued that the Respondents agents have acted unfairly and in breach of their legitimate expectations. The Applicants have not expoung_ed their expectattons or how thes~. have been brea9hed by the • • . • • " .._ • • - .. d . . ., .,,,, , • - • • .._ , • ... _._ . \ Responde nt's a gents. The CoU:rt is therefore unable . to determine y y y y whether there has indeed been a breach of legitimate expectation. This ground therefore fails. I now turn to specifically addr ess the reliefs clai1ned by the Applicants. 1. The Applicants first claim is for a n Order of Certiorari to move into the High Court for purposes of quashing the decision by the Respondent acting through its agents the Zambia Police Service and the Drug Enforcement Co1nmission (DEC) to search t he 2nd Applicant's premises situated at Plot No. 186 Luanshya Road, Villa Elizabetha without a duly issued Court Order and to quash the decision. I have a lready found that the search conducted by the Respondent's agents on the 2nd Applicants property on the 27th J 30 .. February 2016 without a search warrant was illegal. This act having already been carried out, there is therefore no decision in force to quash. This claim is therefore misconceived and fails accordingly. 2. The Applicants second claim is for an Order and Declaration that the decision to conduct a subsequent search of the 2 nd Applicants premises situated at Plot No 186 Luanshya Road, Villa Elizabetha by the Respondent's agents under a search warrant dated 1st March 2016 when the said premises are already in the possession and custody of the Respondent's agents and a search had already been conducted without a search warrant is illegal and unconstitutional as it contravenes the provisions of the Constitution of Zambia. I have already made a finding that the search warrant of 1st March 2016 was not executed as a second search was not conducted. I have also staled t hat the Applicants were not affected by the issuance of this warrant which did not materialize. This claim therefore also fails. 3. Tu rni~g lo the Appli~~t:~ third claim. ~r an ·order of -~~d'.~us compelling the Respondent's agents to vacate and leave the ,r- Applican t's a foresaid premises. The lea rned authors of the Rules of the Supreme Court, White Book ( 1999 Edition) describe Mandamus in Order 53, rule 14 sub rule 42 as: 'an Order requiring an inferior Court or tribunal or a person or body of persons charged with a public duty to carry out its judicial or other public duty. An order of mandamus cannot be made against the Crown but it will lie against an officer of the Crown who is obliged by Statute to do some ministerial or administrative act which affects the rights or interests of the Applicant.' J 31 It is clear that an order of mandamus is an order requiring a public officer to carry out some public duty that he is compelled by law to carry out. In the present case, there is no public duty that the Applicant s are requesting the Respondent to carry out. To the contrary they seek an order compelling the Respondent's agents to vacate their premises. An application for mandamus is therefore not the appropriate remedy in the circumstances of this case. This claim fails accordingly. 4. The Applicants fourth claim is for an Order of Prohibition proscribing the Respondent and his agents from continuing to unlawfully besiege , possess, guard the Applicants property. The learned authors of the Rules of the Supreme Court, White Book (1999 Edition) describe Prohibition under Order 53, rule 14 sub rule 40 as, 'an Order restraining an inferior court, or tribunal or a public authority from acting outside its jurisdiction. , ( - ) ~ ·t he present c~ ~-, · ·1 h ave a lr;~;h~-- f~uhd that ·t1}C -~~tions of t~;v' Respond ent's agents to take possession, custody and guard of the said pre mises without a duly issued Court Order as being illegal and in excess of jurisdiction. There is therefore no legal basis for the Officers of the Za mbia Police Service and/ or the Drug Enforcem ent Agency to continue guarding, controlling or possessing the 2nd Applicants property. The foregoing authority empowers the Court to grant an order restraining a public authority from ac ting outside its jurisdiction. I therefore grant an Order of Prohibition sought by the Applicants proscribing the Respondent's agents from possessing, occupying and / or controlling the 2 nd Applicant's property. J 32 • r order that the Respondent through its agents shall forthwith vacant the said property and give immediate possession and contr ol of Plot 186, Luanshya Road, Villa Elizabetha, Lusaka to the 2 nd Applicant. The Applicants claims at 5, 6 a nd 7 have been overtaken by events. The Applicants final claim is for an Order for costs. The Applica n ts having partially succeeded with their claims, I order that the Respondent shall bear the Applicants costs of this suit, to b e taxed in default of agreement. Delivered at Lusaka this 29th day of December 201 7 ...... . .. - ' ......... . - ... ... .... . • - -_ ·l. J 33