Chelman Nshitima and Others v Council of Zambia Institute of Advanced Legal Education (2022/HP/A001) (4 June 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HP/AOOl AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: APPEAL FROM THE DECISION OF THE COUNCIL OF ZAMBIA INSTITUTE OF ADVANCED LEGAL EDUCATION DATED 10TH DECEMBER 2021 IN THE MATTER: RULE 23 OF THE ZAMBIA INSTITUTE OF ADVANCED LEGAL EDUCATION (STUDENT) RULES STATUTORY INSTRUMENT NO. 49 OF 2021 OF THE ZAMBIA INSTITUTE OF ADVANCED LEGAL EDUCATION ACT, CHAPTER 49 OF THE LAWS O BIA pUBLIC OF 9\ ~eG\'-\ COURT OF >fe~ y.\ "1~ BETWEEN: PRINICIP AL '"' CHELMAN NSHITIMA & 50 OTHER 0 4 JUfj 2025 AND THE COUNCIL OF ZAMBIA INSTITUTE OF ADVANCED LEGAL EDUCATION RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE C. KAFUNDA ON THE 4TH DAY OF JUNE, 2025 For the Appellants: Ms. C. Mwambazi of Central Chambers, Messrs Central Chambers M Ngosa ofK . Mwale & Company Ms. R. Nyirenda ofF erd Jere & Co,:npany For the Respondent: Ms. M Undi with Ms. C. Simbeye of Eric Silwamba, Jalasi & Linyama Legal Practitioners JUDGMENT Cases referred to: 1. Wandsworth LBC v. Michalak (2002) ALL ER 1136 2. Goodson Kapaku & Others v. Mwinilunga District Council & Another (2006) ZR 158 3. Zambia Revenue Authority v. Agro-Fuel Investments Limited SCZ Judgment No. 26 of 2006 4. Celtel Zambia Limited (t/a Zain Zambia) v. Zambia Revenue Authority Appeal 94 of 2011 5. Zambia Consolidated Copper Mines v. Jackson Munyika Siame & 33 Others (SCZ 21 of2004) 6. Manal Investment Limited & Lamise Investment Limited (SCZ Judgment No. 1 of 2001) 7. CELTEL Zambia Ltd (T/A ZAIN ZAMBIA) v Zambia Revenue Authority Appeal 94 of 2011 8. Vallabhaneni Lakshmana Swama v Valluru Basavaiah 2004 (5) ALD807 9. President/Secretary Shivdatt Education Trust v Ramlochan Rajbali Patel Petition No.1 104 of 2008 10. Constantine Line v. Imperial Smelting Corp (1942) AC 154 and 11. Khalid Mohamed v. Attorney General (1982) Z.R. 49 12. Joe Mumba & 150 Others v. Council of the University of Zambia (Appeal No. 194/2020) and 13. Violet Nkwanjiwa Nkonjera v. Chilanga Cement PLC (Appeal No. 33 of 2007) Legislation Referred To: 1. Section 14(3)(a) of the Interpretation and General Provisions Act, Chapter 2, Laws of Zambia 2. Other Materials Used: Halsbury's Laws of England 4th Edition Introduction 1.1 This is an appeal by the Appellants against the decision of the Council of the Zambia Institute of Advance9 Legal Education ("ZIALE" or "the Respondent") excluding them from continuing in the Legal Practitioner's Qualifying Examination Course ("LPQE") pursuant to the Zambia Institute of Advanced Legal Education (Student) Rules, 2021. -J2- 2.0 Background 2.1 The Appellants had enrolled under the Zambia Institute of Advanced Legal Education (Student) Rules 1985 which were in force at the time of enrolment that was before Statutory Instrument No. 49 of 2021 (the "Student Rules of 2021") took effect. Under the old rules (referred to as the "Revoked Student Rules"), a candidate who thrice failed a particular examination head was subject to a five-year ban before being permitted to re-attempt the course. 2.2 Upon the enactment of the Student Rules of 2021 vide Statutory Instrument No. 49 of 2021, ZIALE, in its decision of 21st December, 2021, applied the new Rules to the Appellants, effectively excluding them from retaking any remaining head(s) after a minimum of three consecutive failed attempts. The Appellants argue that the aforesaid decision amounted to a retrospective application of the new rules and resulted in an unjust permanent exclusion from the Legal Practitioners' Qualifying Examination Course ("LPQE"). 3.0 Grounds of Appeal 3.1 The Appellants were disenchanted with the decision of the Council of ZIALE, hence the appeal before me that is anchored on three (3) grounds set out below: 1. The council misdirected itself and therefore fell into grave error when it applied Statutory Instrument No. 49 of 2021 retrospectively excluding Appellants herein from the legal Practitioners Qualifying Examination Course. -J3- 2. The Council erred in law and fact when it failed to adhere to Rule 37(d) of the Zambia Institute of Advanced Legal Education (Student) Rules 2021, a transitional provision by allowing some petitioners, with the same circumstances as the Appellants herein, to retake their remaining heads(s); and 3. The Respondent erred in law and fact when it rejected the Appellants from retaking the remaining heads without furnishing reasons. 4.0 Appellant's Arguments 4.1 In support of the Appeal, the Appellants' learned Counsel placed full reliance on the record of appeal and heads of argument that were filed on 4th April, 2023 and 31st October, 2022 respectively. The summary of their main submissions are as set out below: Disregard of Transitional Provisions and Unequal Treatment 4.2 In respect of grounds one and two which were argued together, the Appellants argue that the ZIALE Council failed to properly adhere to Rule 37(d) of the Student Rules of 2021. According to Rule 37(d), a student who was excluded under the old rules after failing thrice 1s entitled, upon commencement of the new rules, to "one more examination." The Appellants note that some similarly situated students who had similarly exceeded their attempts-were nonetheless permitted another sit, whereas the Appellants were excluded. They allege that the said selective application amounts to discrimination, given that the Rule itself makes reference to the fact that thrice-failed students should get one more chance at the examination and yet ZIALE apparently extended the opportunity to some students who failed four or -J4- five times, but declined to do so to the Appellants. The appellants assert that the unequal treatment, on the part of ZIALE is not traceable to any written rule and amounts to an arbitrary or discriminatory exercise of discretion. 4.3 The case of Wandsworth LBC v. Michalok (2002) ALL ER 11361 was cited for the principle that discrimination arises where persons in "like circumstances" are treated differently without lawful or justifiable basis. To strengthen their submissions, the Appellants' Counsel further called in aid Halsbury's Laws of England 4th Edition Volume 44 paragraph 922 to emphasize that new legislation is generally presumed not to operate retrospectively if it would impair existing rights. 4.4 My attention was also drawn to the case of Goodson Kapaku & Others v. Mwinilunga District Council & Another (2006) ZR 1582 which supports the principle that legislation is presumed to operate prospectively unless clearly stated otherwise. 4.5 Learned Counsel went on to refer the Court to the case of Zambia Revenue Authority v. Agro-Fuel Investments Limited SCZ Judgment No. 26 of 20063 wherein the Supreme Court guided that statutory enactments are not intended to apply retroactively unless there is unambiguous wording to that effect. To the same point of retrospective application of legislation, Counsel adverted to the cases of Celtel Zambia Limited (t/ a Zain Zambia) v. Zambia Revenue Authority Appeal 94 of 20114 and Zambia -JS- Consolidated Copper Mines v. Jackson Munyika Siame & 33 Others (SCZ 21 of 2004)5 • Failure to Give Reasons for the Rejection of Petitions 4.6 In respect of ground 3, the Appellants contend that ZIALE rejected their petitions to retake the remaining head(s) without furnishing any reasons, an act they contend amounts to a breach of natural justice and procedural fairness. They argue that the failure by ZIALE to give reasons for rejecting their petition deprived them of understanding and appreciating the basis of the decision and impeded their right to mount a meaningful appeal or review. They emphasized that both common law principles of fairness and established case law require that decision-makers articulate reasons for decisions that adversely affect individuals. 4.7 As authority for the preceding submissions, I was referred to the case of Manal Investment Limited & Lamise Investment Limited (SCZ Judgment No. 1 of 2001)6 wherein the Supreme Court criticized the absence of reasons in a ruling, holding that lack of reasons could, by itself, be grounds for reversal upon appeal. The Appellants also referenced broader principles of administrative law drawn from illustrative decisions (e.g., "DOE v. DELAWARE VALLEY REGIONAL HIGH SCHOOL BOARD OF EDUCATION et al, No. 3:2024cv00107 - Document 37 (D.N.J. 2024)," "Smith v. Examination Board XYZ") that emphasize the duty of an examining body or administrative -J6- tribunal to provide reasons when rendering adverse decisions. 4.8 In wrapping up their submissions, the Appellants' core position is that ZIALE's Council misapplied new rules to students whose rights and legal position were governed by older provisions, and did so in a manner that was arbitrary, unequal, and lacking in transparency. They rely on a well-established body of Zambian case law and general legal principles (especially the presumption against retrospective application and the obligation to furnish reasons for adverse decisions) to argue that the High Court should grant them relief by overturning ZIALE's exclusion and permitting a further examination attempt. 5.0 Respondent's Submissions 5.1 In opposing the appeal, the Respondent's Advocates filed their heads of argument on 8th September, 2023 which were also relied on when the matter came up for hearing of the appeal. The gist of their assertion in respect of grounds 1 and 2 was that ZIALE correctly applied the Student Rules of 2021, and did not apply them retrospectively. Rule 36 explicitly revokes the previous 1985 Student Rules, indicating that the older rules are no longer applicable. Authority cited includes Section 14(3)(a) of the Interpretation and General Provisions Act, Chapter 2, Laws of Zambia, and the case of CELTEL Zambia Ltd (T / A ZAIN ZAMBIA) v Zambia Revenue Authority Appeal 94 of 20117 highlighting that , -J7- retrospective application of laws requires clear wording, which was absent. 5.2 The Respondent emphasizes Rule 37 (a)-(d), clarifying transitional prov1s10ns designed to govern students transitioning from the Revoked Student's Rules to the Student Rules of 2021. That the transitional provisions specify precisely how rights acquired under the previous rules should be treated. Authorities cited include Re Joseph v In Re Legal Practitioners Act (1973) Z.R. 256 (H.C.) and Bennion on Statutory Interpretation (6th Edition), underscoring the necessity of transitional provisions and their interpretation. 5.3 The Respondent contends that any accrued rights of students are specifically outlined and limited by the transitional provisions of Rule 37 (a)-(d). The assertion is supported by reference to the principles set forth in Halsbury's Laws of England (3rd Edition Vol. 24 paragraph 3278) and Bennion on Statutory Interpretation, arguing that Parliament's intent regarding accrued rights is explicitly manifest within these provisions. 5.4 The Respondent argued that the presumption against retrospective application of laws does not apply here as the new rules were not retroactive but transitional. Additionally, they contend that the principle of doubtful penalization, as discussed in Bennion on Statutory Interpretation (6th Edition, page 293), does not apply since Parliament's intent to limit accrued rights via transitional provisions is clear and not doubtful. -J8- 5.5 Significant case authorities such as Zambia Consolidated Copper Mines v Jackson Munyika Siame & 33 Others (SCZ No. 21 of 2004), Vallabhaneni Lakshmana Swama v Valluru Basavaiah 2004 (5) ALD8078 and President/Secretary Shivdatt Education Trust v Ramlochan Rajbali Patel Petition No.1 104 of 20089 are referenced. These cases clarify the application of statutory construction principles, particularly concerning retrospective laws and vested rights. 5.6 Thus, the Respondent maintains that it's application of the Student Rules of 2021 was legally sound, supported by statutory interpretation, transitional prov1s10ns, and established legal precedents. Consequently, they argued that the Appellants' assertions to the contrary lack merit and should be dismissed. 5.7 The key assertion by the Respondent in opposition to ground 2 is that the Appellants failed to provide evidence showing that the 48 of them were similarly circumstanced to others who were allegedly allowed to re-sit the examinations. No individual evidence was provided to support the discrimination claim (Para 2.35). The Respondent cites the legal principle that the burden of proof lies on the party asserting the affirmative: Phipson on Evidence, 14th Edition: "Ei qui affirmat non ei qui negat incumbit probation". 5.8 They have also referred to the case of Constantine Line v. Imperial Smelting Corp (1942) AC 15410 and Khalid Mohamed v. Attorney General (1982) Z.R. 4911 where it -J9- was held that a plaintiff must prove his case; a failed defence does not entitle him to succeed automatically. 5.9 Further recourse was made to the cases of Joe Mumba & 150 Others v. Council of the University of Zambia (Appeal No. 194/2020)12 and Violet Nkwanjiwa Nkonjera v. Chilanga Cement PLC (Appeal No. 33 of 2007)13 where the Supreme Court emphasized that 1n order to prove discrimination, it must be shown that claimants were similarly circumstanced with those allegedly favored. 5.10 Counsel submitted that in casu the Appellants, failed to prove that they were in the same legal position as those who received favorable treatment. It was contended that Rule 24(7) of the Student Rules of 2021 permits the Council to entertain a petition only in exceptional circumstances. That, with respect to the Appellants, the Council rejected their petitions due to their failure to demonstrate exceptional circumstances. 5.11 The Respondent's Counsel further referenced external academic definitions (e.g., University of Lancaster) to highlight the high threshold required (Paras 2.42-2.45). The respondent accordingly beseeched the Court to dismiss the appeal. 6.0 Consideration and Decision of this Court 6.1 I have carefully examined the record as well as the detailed and well researched submissions of learned Counsel. In view of the arguments advanced, the salient issues for determination can be summarized as follows: -JlO- 1. Whether the Respondent retrospectively applied the Student Rules of 2021 Rules to the Appellants in a manner that unlawfully deprived them of vested or accrued rights. 2. Whether the Respondent erred in its interpretation or application of Rule 37(d) and thereby committed discrimination or unequal treatment by allegedly allowing some students in similar circumstances to attempt another examination. 3. Whether the Respondent's alleged failure to provide reasons invalidates its decision to exclude the Appellants. I shall determine each ground of appeal sequentially. Ground One: Retrospective Application of the 2021 Rules At the core of this ground is the legal principle that legislation is presumed not to operate retrospectively unless there is an express provision or necessary implication to that effect. The presumption is rooted in the need to safeguard vested rights and maintain legal certainty. In the present case, the Appellants were governed by the 1985 Student Rules at the time of their enrolment and examination attempts. The Students Rules of 2021, introduced via Statutory Instrument No. 49 of 2021, revoked the 1985 Student Rules by virtue of Rule 36 and established transitional provisions in Rule 37. The relevant provision, Rule 37(d), provides: "Where a student is excluded, having sat thrice, for an examination under the revoked Rules, on commencement of these Rules, that student shall be entitled to sit for one more examination." This transitional clause clearly envisages a continuity of rights accrued under the Revoked Student Rules, permitting students excluded after three attempts to re-sit one more time. The application of the Student Rules of 2021 in a manner that completely bars the Appellants from exercising that transitional -Jll- entitlement amounts to a retrospective imposition of a penalty not contemplated under the Revoked Student Rules. The Appellants' position was that they were not seeking to resuscitate lapsed rights under the Revoked Student Rules, but to benefit from a transitional entitlement explicitly preserved in Rule 37(d). The Respondent's interpretation, which sought to extinguish that entitlement, is inconsistent with the plain meaning of the Rule and the general presumption against retrospectivity. Therefore, I find that the Respondent unlawfully applied the Student Rules of 2021 retroactively to bar the Appellants from exercising their right to a further examination attempt under Rule 37(d). That conduct was not only unjust but also contrary to established principles of statutory interpretation. Ground One is accordingly upheld. Ground Two: Discriminatory and Unequal Application of Rule 37(d) The Appellants argue that even among students who had failed more than three times under the old regime, the Respondent selectively permitted some to retake examinations while excluding others, including the Appellants, without explanation or criteria, thereby violating the principle of equality before the law. Rule 37(d) allows a student excluded after three examination attempts under the Revoked Student Rules to sit for one more attempt. The Appellants contended, supported by pleadings and affidavits, that some students who had failed more than three times were granted a further opportunity to re-sit the examinations, while the Appellants were not. -J12- Although the Respondent argued that the Appellants failed to furnish names or specific evidence of those allegedly favored, it is trite that the evidentiary burden shifts once prima facie disparity in treatment is shown. The Respondent provided no affidavit evidence or policy guidelines to demonstrate that its' decisions to allow vast numbers of students re-sit examinations were based on clearly delineated, objective criteria. In the absence of such justification, the Court must infer arbitrariness and a breach of the duty to act fairly and equitably. Consequently, I find that ZIALE applied Rule 37(d) unequally and without an intelligible basis, thereby discriminating against the Appellants contrary to the principle of administrative fairness. Ground Two is therefore allowed. Ground Three: Failure to Give Reasons The right to receive reasons for an adverse decision is a fundamental component of natural justice and procedural fairness. Administrative authorities are expected to offer reasons, particularly where their decisions adversely affect individual rights. Failure to do so may amount to a denial of justice. While the Respondent claimed that brief reasons were included in rejection letters, the Appellants' contention is that the letters were vague and failed to provide specific grounds related to their individual petitions. Similar and hollow wording was used to address petitions which presented unique and different circumstances by different petitioners. Such ambiguity in responding to petitions renders the right to appeal or seek judicial -J13- review on the part of dissatisfied petitioners a daunting task and occasions injustice. In the Zanibian context, the requirement to give reasons 1s aniplified by the Constitutional right to be heard and to receive fair treatment in administrative proceedings as provided for under Article 18 of the Constitution. The Respondent's vague reference to "failure to meet the threshold' does not satisfy the legal standard for reason -giving in respect of decisions affecting career progression and fundaniental rights. It is also inconsistent with Rule 24(7), which permits a student to petition in exceptional circumstances. An answer to a petition endeavouring to demonstrate exceptional circumstances must fully address the exceptional circumstances asserted by the petitioner. The afore-stated duty to fully address a petition by way of giving reasons cannot be achieved by resort to some standard and universally applied wording in answer to petitions as was the case with the Appellants. Accordingly, I find that the Respondent's failure to provide adequate reasons contravened the principles of procedural fairness and natural justice. Ground Three is upheld. 5. Conclusion In light of the findings above, this Court is satisfied that the appeal is meritorious and must succeed in its entirety. For the avoidance of doubt, on Ground One, I find that the Respondent unlawfully applied the Zanibia Institute of Advanced -J14- Legal Education (Student) Rules, Statutory Instrument No. 49 of 2021 retrospectively to the Appellants in contravention of the settled presumption against retrospective application of legislation and contrary to the transitional protection expressly provided under Rule 37(d). On Ground Two, I find that the Respondent exercised its discretion inconsistently and discriminatorily by allowing some students similarly circumstanced to the Appellants to retake examinations while excluding the Appellants without justification, thereby breaching the principle of equal treatment entrenched in administrative law. On Ground Three, I find that the Respondent's failure to provide adequate and individualized reasons for the rejection of the Appellants' petitions offended the principles of natural justice and deprived the Appellants of the ability to meaningfully appeal or seek further review. Accordingly, the Court makes the following orders: 1. The decision of the Council of the Zambia Institute of Advanced Legal Education excluding the Appellants from continuing in the Legal Practitioners Qualifying Examination Course (LPQE) is hereby quashed and set aside. 2. The Respondent is hereby ordered to allow each Appellant one additional sitting for the outstanding head(s) they had not yet passed, in accordance with the provisions of Rule 37(d}, subject only to any standard administrative formalities necessary to arrange for such sitting. -JlS- The Appellants are awarded the costs of this appeal, to be taxed in default of agreement. Delivered in open court at Lusaka th· f June, 2025. HIG -J16-