Banda v Attorney General (CCZ 10 of 2022) (20 June 2022) – ZambiaLII

IN THE CONSTITUTIONAL COURT OF ZAMBIA 2022/CCZ/0010 HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: THE CONSTITUTION OF ZAMBIA, CHAPTER 1, VOLUME 1, OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLES 1(5), 2, 88 (1)(2), 91 (3), 128 (3) (b) and (c), 140 (c), 141 (l)(d), 143, 144, 216 (b) 219, 220, 236 (2) (a), (b), (c) and (d), 261 and 267(4) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA. IN THE MATTER OF: THE STATE PROCEEDINGS ACT, CHAPTER 71 VOLUME 6, OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE JUDICIAL CODE OF CONDUCT ACT NO. 13 OF 1999 AS AMENDED BY ACT NO. 13 OF BETWEEN: PETITIONER JOSHUA NDIPYOLA BAND AND RESPONDENT THE ATTORNEY GENE May, 2022 and 20th Before the Hon. Mrs. Justice A.M Sitali June, 2022 For the Petitioner: Mr. S. Sikota, SC of Central Chambers and Mr. J. Mataliro of Messrs James and Doris Legal Practitioners Mrs. K.N Mundia, Principal State Advocate For the Respondent: and Ms. C. Bwalya, State Advocate RULING R1 Cases referred to: 1. Kabimba v Attorney General and Another SCZ Judgment No. 13 of 2. Lino-type Hell Finance Limited v Baker (1992) ALL ER 887 3. Sturla v Freccia [1987] 12 Ch.D 446 4. Solicitors v Agrichem International Holdings (2001) Ltd EWCA Civ 5. Shaw v Holland (1) [1900] 2Ch.D 305 6. Sonny Paul Mulenga & Others v Investrust Merchant Bank Limited 1991 ZR 101 7. Nyampala Safari Zambia Limited and Others v Zambia Wildlife Authority and Others (2004) Z.R. 49 (S.C.) 8. Vangelatos v Metro Investment Limited S.C.Z No.21 of 2013 9. Mutembo Nchito v The Attorney General 2016/CC/OO29 10. Ngosa Simbyakula and 63 Others v Attorney General, 2016/CCZ/0010 11. R v Secretary of State for Education and Science Ex-parte Avon County Council [1992] All ER at page 282 12. R v Ashworth Special Hospital Authority [2003] 1 WLR at page 127 Legislation referred to: 1. The Constitutional Court Rules, Statutory Instrument No.37 of 2016 2. The Rules of the Supreme Court of England, 1999 edition Other authorities cited: 1. De Smith's Judicial Review 6th Edition at paragraph 6-69 and paragraph 18-07 at page 891 This is the Petitioner’s application for an order to stay the decision of the Republican President to remove him from office of High Court Judge dated 6th May, 2022. The application was made by way of exparte summons and was accompanied by an affidavit sworn by the Petitioner. I ordered that I would hear the matter interparty. R2 In the supporting affidavit the Petitioner averred that he had served in the Judiciary in various positions and was Registrar of the High Court from 2015 until he was retired from that position on 14th July, 2021. On 14th July, 2021, he was sworn in as High Court judge and was issued with letters patent which constituted him as Judge of the High Court. The Petitioner averred that on 4th February, 2022 he received a letter from the Secretary of the Judicial Complaints Commission (JCC) informing him that the JCC had received a complaint against him from Mr. David Mwaanza. The complaint which was attached related to an allegation the complainant had made against him during his tenure of office as Registrar of the High Court and not during his service as a Judge. He averred that on 14th February, 2022, the JCC served him with a summons to appear and answer to a complaint of misconduct and not gross misconduct pursuant to Article 236(a) (b) and (c) as read with sections 24 and 25 of the Judicial Code of Conduct Act No. 13 of 1999. That on 8th May, 2022, he received a letter from the Republican President dated 6th May, 2022 stating R3 that the President had accepted the recommendations of the JCC and had decided to remove him from his position as Judge. The Petitioner contended that the procedure adopted by the JCC was unfair and unconstitutional as he was never summoned before the JCC to answer to any allegation of gross misconduct nor did he participate in any proceedings for his removal from office under Articles 143 and 144 of the Constitution as evidenced by the summons he exhibited to his affidavit marked JNB14. The Plaintiff contended that he was denied the right to be heard on the allegation for his removal from office of judge and was condemned unheard on charges of gross misconduct. The Petitioner further contended that the JCC did not follow the procedure enshrined in the Constitution for the removal of judges and that it exceeded its authority and power when it usurped the powers of the Constitutional Court and delved into the interpretation of Articles 143 and 144 of the Constitution instead of referring the interpretation of those provisions to this Court. He further contended that the President’s acceptance of the JCC’s recommendation to remove him from office of judge and to recall, for purposes of cancelling, the letters patent constituting him R4 as judge was unconstitutional, illegal, irrational and marred by procedural impropriety as the procedure laid down in Article 144 of the Constitution was not followed. The Petitioner averred that he has been advised by his advocates that the petition he has filed before this Court has extremely high prospects of success and that unless this Court stays the decision to remove him from office pending the determination of the petition, the petition would become otiose and a mere academic exercise; and that he will suffer irreparable harm as the letters patent issued to him will be destroyed. That once destroyed, the letters patent will be impossible to recreate, and that therefore damages cannot compensate him for the injury that may result. The Petitioner asserted that the Respondent will not be prejudiced in any way if the decision is stayed. He further contended that should the reliefs sought in the petition be granted, it will be impossible to enforce the order as the number of judges in the High Court is limited by law. Further, that granting a stay transcends the interest of the Petitioner and stands to protect the constitutional order of the country which is a matter R5 of great public interest, and further that it will be in the interest of justice for the stay to be granted. In skeleton arguments in support of the application, Counsel for the Petitioner, submitted that at the core of the justice system and the implementation of the law lies an inherent right of the Courts to grant orders which further the ends of justice. That one such order is an order to stay any action that is or may appear to be unjust or not to be in the interest of justice. Counsel cited the case of Kabimba v Attorney General and Another 111 and submitted that the facts of this case demonstrate special circumstances for which a stay of the decision can be granted. He added that the Petitioner stands to be ruined and will suffer irreparable damage if the President’s decision is not stayed. That the office of judge will be reduced in dignity as the circumstances leading to the President’s decision were not only unfortunate but illegal. Further, that it is only this Court that can salvage the residue of dignity and integrity of the office of Judge. Counsel contended that it had been established in the Petitioner’s affidavit that by the decision of the President, the Petitioner will and is likely to lose his office making it difficult for R6 him to reclaim it at the end of the petition proceedings should he succeed and that the letters patents once destroyed will be difficult to bring back. That the facts in the affidavit constitute special circumstances on which a stay must be granted. Secondly, Counsel submitted that if the President’s decision is not stayed, the continuation of this petition will become an academic exercise and or the execution of any order of the Court upon the determination of the petition will be very difficult to attain. He contended that this Court must protect the rights of the Petitioner so that the matter can be fairly and effectively determined. He cited the cases of Lino-Type Hell Finance Limited v Baker [2], Sturla v Freccia [31, Solicitors v Agrichem International Holdings Ltd141 and Shaw v Holland151, and submitted that it is only fair that justice be manifestly done by granting the Petitioner the order to stay the President’s decision. According to Counsel, the case of Shaw v Holland*51 was on all fours with the present case wherein it was stated that the general rule should be that the proceedings under a judgment should not be stayed pending an appeal except on special grounds and that some special ground must be shown upon any application to the court for a stay. R7 Counsel submitted that Zambian Courts have accepted the same determinant and that the Supreme Court stated in the case of Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited |6), that in exercising its discretion regarding whether or not to grant a stay, the Court is entitled to preview the prospects of the appeal. That to a large extent, the Petitioner’s supporting affidavit has shown special grounds upon which a stay of the President’s decision ought to be granted. Further, that the balance of prejudice will be against the Petitioner if the stay is not granted as the petition has merit. The Petitioner prayed that this Court exercises its discretion to order that the President’s decision dated 6th May, 2022 be stayed pending the determination of the petition. The Respondent filed an affidavit in opposition sworn by Naisa Makeleta, in his capacity as the Commission Secretary at the JCC. He asserted that the JCC acted within the confines of the law in executing its mandate to discipline judicial officers and that any challenge to the procedure applied by the JCC cannot be by way of petition. That contrary to the Petitioner’s assertion, the Petitioner stated at the hearing before the JCC that he did not have any issues with the way the hearing was conducted. He denied that the R8 petition has high prospects of success and alleged that the Petitioner had come to Court using the wrong mode of commencement. The deponent further stated that the President acted in line with the Constitution and that there was nothing to stay in this case as the decision of the Republican President had already been executed and the Petitioner was no longer a judge of the High Court. The deponent further asserted that the public are more likely to suffer prejudice if a stay is granted as the Petitioner cannot be sitting as a Judge of the High Court while these proceedings are taking place. The deponent averred that he had been advised by his advocates that the Petitioner is unlikely to suffer irreparable injury which cannot be compensated in damages as the letters patent are not impossible to recreate. That denying the order for a stay would be in the public interest and would protect the constitutional order of this Country. In skeleton arguments in opposition to the application, Mrs. Mundia, Counsel for the Respondent submitted that for an order of stay to be granted in favour of the Petitioner, he must show that R9 there are exceptional circumstances to warrant the grant. That in this case, the Petitioner has not provided any good reasons or special circumstances why the stay should be granted because there is nothing to stay. The case of Nyampala Safari Zambia Limited and Others v Zambia Wildlife Authority and Others(7) was cited to support the submission that a stay of execution is granted on good and convincing reasons, and that the applicant must clearly demonstrate the basis on which a stay should be granted. Counsel argued that the reasons advanced by the Petitioner that he will be ruined; that the office of a Judge will be reduced in dignity; that his letters patent will be destroyed and cannot be brought back; and that he will lose his office are not good reasons on which a stay may be granted, because although the facts of the case raise alleged constitutional violations, the action has been brought using the wrong mode of commencement and before a wrong Court. The Respondent called in aid the case of Vangelatos v Metro Investment Limited18* to press the point that a stay will not be granted where there is nothing to stay. It was submitted that in this RIO case, the Petitioner has been removed from office, therefore there is nothing to stay, and there are no special circumstances to warrant the grant of a stay. Mrs. Mundia went on to submit that the Petitioner has failed to demonstrate that he is likely to suffer irreparable injury that cannot be compensated in damages; that his petition has prospects of success; or that the Respondent will not suffer any prejudice in the event of the order being granted. She further cited the case of Mutembo Nchito v The Attorney General*91 in which the petitioner in that case sought an order to stay the decision of the President to dismiss him from office as Director Public Prosecutions. That this Court held that it is not for this Court to delve into the merits of the case at preliminary stage or to weigh the evidence although the affidavit evidence prima facie discloses a serious issue to be tried. Counsel urged me not to depart from well-settled principles of the law on orders for stay simply because the Petitioner will lose his office. It was submitted that in the event that the Petitioner succeeds in the substantive hearing, any harm he would have suffered can be atoned for in damages as the State has the capacity Rll to pay him his dues or any damages that may accrue to him. The case of Ngosa Simbyakula and 63 Others v Attorney General*10’ was cited in support. On the question of balance of convenience, Mrs. Mundia cited the Mutembo Nchito*9’ case in which this Court agreed with the respondent in that case that a stay would warrant taking a position against the decision by the President without having heard the substantive case. Counsel further argued that the legality of the process that resulted in the Petitioner’s removal from office can only be determined through judicial review proceedings, and not at the hearing of the petition, and that therefore the President’s decision cannot be stayed. In his affidavit in reply, the Petitioner essentially reiterated the averments made in the affidavit in support of the application. He maintained that the President’s decision can be stayed and that he is still a judge of the High Court until the petition is finally determined and the letters patent constituting him as a Judge are properly surrendered and destroyed. That as such, the decision of the President has not yet taken effect and ought to be stayed. R12 The Petitioner further contended that there was no evidence to show how the public would suffer prejudice if he were to sit as Judge whilst awaiting the final determination of the petition. The arguments in reply reiterated the skeleton arguments filed in support of the application. At the hearing of the application, Mr. Mataliro, counsel for the Petitioner relied on the affidavit in support of the petition and in reply as well as the filed skeleton arguments. By way of augmenting the written arguments, Mr. Mataliro, submitted that this Court has the power to hear the application for, and to grant, the order for a stay which is prayed for as well as the jurisdiction to hear and determine the petition itself. Regarding the question whether an order to stay the decision is tenable given that the decision was already made by the President, Counsel referred to the principles that have been laid down in judicial review matters particularly where an applicant prays for an order of certiorari. He cited the case of R v Secretary of State for Education and Science Ex-parte Avon County Council*1 ^wherein the Court of Appeal in interpreting Order 53 rule 3(10) of the Rules of the Supreme Court of England stated that R13 “where an order for prohibition or certiorari is prayed for, the Court may grant the order of stay of proceedings pending the determination of the main matter”. He cited the learned author of De Smith's Judicial Review 6th edition, paragraph 6-69 and paragraph 18-07 at page 891 to support his submission that a stay may be granted to prevent an executive official from implementing a decision. Regarding the Respondent’s argument that there was nothing to stay as the decision was already made, Counsel submitted that the practical effect of a stay varies depending on the context. That where the public authority has yet to make a final decision, the grant of a stay prohibits them from taking any further steps to make that decision final; and that where a final decision has been made but not yet implemented, a stay prevents the implementation of the decision and suspends the decision for the time being. Counsel submitted that the more difficult question is what happens where a decision has already been made and implemented? He cited the case of R v Ashworth Special Hospital Authority*12) wherein the Court of Appeal of England said a court can still grant an order of stay on the basis that if a final quashing R14 order is eventually made, the decision will be treated as never having had any legal effect and that therefore, the court should have jurisdiction to say that a decision is without legal effect on a temporary basis. Counsel submitted that in this case, the Petitioner has prayed for an order of certiorari to quash the decision. Therefore, that since this Court has power to grant an order of certiorari on the final determination of the petition, the Court can suspend the operation of the President’s decision and the process by which the decision was reached until the final determination of the petition. Counsel went on to submit that he was alive to the argument arising from the Mutembo Nchito(9) case where the principles applicable to the grant of an injunction were employed. He argued that there is a conceptual and practical difference between an injunction and an order of stay although they both play the function of preserving a status quo. He contended that the difference is that while an injunction protects the interest of a litigant in dispute with another, a stay is not addressed to an opposing party but rather is directed at suspending the operation of a particular decision. He submitted that as this Court considers R15 this application, this conceptual and practical difference should be employed. Counsel prayed that the application for a stay be granted to suspend both the decision-making process and the decision itself. In opposing the application, Mrs. Mundia, Counsel for the Respondent relied on the Respondent’s affidavit and skeleton arguments in opposition. She proceeded to submit that the petition has no prospects of success as the documents filed before this Court prima facie illustrate an attempt at rehearing or appealing the decision of the JCC, which this Court has no jurisdiction to entertain. Counsel submitted that the Respondent was at pains to see how the independence of the Judiciary was being threatened as alleged by the Petitioner because this matter relates to the gross misconduct of a judicial officer. Counsel argued that if a stay is granted and the Petitioner remains in office while these proceedings are on-going, the integrity of the office of High Court Judge will be threatened because what led to his removal from office were issues of gross misconduct. Mrs. Mundia submitted that since the final decision in this case has R16 already been implemented and the Petitioner has been removed from the office of High Court Judge, there is nothing to stay. Counsel further submitted that the balance of convenience in this case tilts towards the State because if it is found that the Petitioner was improperly removed from office, this can be atoned for in damages. That conversely, if it is found that the Petitioner was properly removed, the public would have been subjected to appear before a Judge who posed a threat to the integrity of the Judiciary having being found guilty of gross misconduct. Counsel therefore prayed that the application for a stay be dismissed. In reply, Mr. Mataliro submitted that the petition is in no way an appeal of the decision of the JCC and that the remedies sought by the Petitioner are clearly stipulated in the petition and do not in any way relate to remedies sought on appeal. Counsel submitted that while it was argued that if a stay is granted, the integrity of the office of Judge will be undermined, the Respondent did not demonstrate how that will happen nor was it indicated how the office of Judge was undermined in the period when the allegation was made against the Petitioner and he continued to perform the functions of his office. R17 Counsel reiterated that since this Court has power to grant an order of certiorari in the main matter, the Court can grant an order to stay the decision thus suspending the legal effect of the assailed decision. He contended that the argument that since the decision is final and has already been made, there is nothing to stay, cannot be sustained. Counsel disagreed with the submission that damages would be an adequate compensation in this case and stated that the concept is best suited to an application for an injunction. Counsel further submitted that the Mutembo Ncito case which was relied upon by the Respondent did not set a precedent that a presidential decision cannot be stayed and that this case can be decided independently and on its merits. He urged me to exercise my discretionary powers judiciously and grant the order to stay the decision in the interest of justice. I have considered the affidavit evidence as well as the skeleton and oral arguments advanced by the parties on both sides. A decision whether or not to grant a stay of execution is discretionary. A party is not entitled to a stay of execution as of right. Further, a court will not grant a stay of execution unless the court is satisfied R18 that there are good reasons for doing so and also where the special circumstances of the case so require. The principles upon which a stay of execution of a judgment which is appealed against may be granted are settled. In the celebrated case of Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited(6) which was cited by Counsel for the Petitioner, the Supreme Court stated as follows: In terms of our rules of Court, an appeal does not automatically operate as a stay of execution and it is utterly pointless to ask for a stay solely because an appeal has been entered. More is required to be advanced to persuade the court below or this court that it is desirable, necessary and just to stay a judgment pending appeal. The successful party should be denied immediate enjoyment of a judgment only on good and sufficient grounds. The Supreme Court added that: In exercising its discretion whether to grant a stay or not, the court is entitled to preview the prospects of the proposed appeal. In the present case however, the action was commenced by way of a petition wherein the Petitioner alleges, in the main, that the JCC contravened the provisions of Articles 143 and 144 of the Constitution in the manner it handled the process leading to his removal from the office of judge of the High Court by the Republican President. It is the Petitioner’s contention that he was not given an R19 opportunity to respond to a charge of gross misconduct relating to his position as High Court Judge and further that he did not participate in any proceedings before the JCC relating to his removal from office as Judge of the High Court. The Petitioner contended that the JCC essentially did not comply with the procedure set out in Article 144 of the Constitution on the removal of a judge from office. The Petitioner therefore argued that the affidavit evidence in support of the petition reveals special circumstances to warrant the grant of a stay. The facts which the Petitioner contends constitute special circumstances to warrant the grant of an order to stay the Republican President’s decision to remove him from office as High Court Judge are disputed by the Respondent who asserts that the procedure for his removal from office was duly complied with by the JCC and the President. Whether or not there was a breach of Articles 143 or 144 of the Constitution as alleged by the Petitioner is not a matter for consideration at this preliminary stage of the proceedings. It therefore cannot form the basis for the grant of an order to stay the impugned decision. R20 The Petitioner cited a number of decided case authorities which were rendered either in judicial review proceedings pursuant to Order 53 of the Rules of the Supreme Court, 1999 edition (the White Book) such as in the case of Kabimba v Attorney General and Another*or in relation to appeals such as in the case of Sonny Paul Mulenga and Others v Investrust Merchant Bank Limited*61. The case of Sonny Mulenga which states that an appellate court, in determining whether or not to grant an order of stay of execution of judgment, may preview the prospects of success of an appeal does not assist the Petitioner since the petition he filed is before this Court in the exercise of its original jurisdiction. Therefore, the issue of previewing the prospects of success of the petition in deciding whether or not I should grant an order to stay the Republican President’s decision to remove him from the office of High Court j udge does not arise as there is no appeal before this Court whose success can be previewed. Further, whether or not the petition has merit is a matter which can only be determined by a panel of this Court in exercise of its jurisdiction under Article 128 of the Constitution. R21 Similarly, the case of Wynter Kabimba which the Petitioner cited extensively in support of this application wherein the Supreme Court granted a stay of the decision to transfer the appellant, related to judicial review proceedings. It is clear from the provisions of Order 53 rule 3 (10) of the White Book that a court when granting an applicant leave to commence judicial review proceedings may order that the leave granted will operate as a stay of the proceedings to which the application relates if the relief sought is an order of prohibition or certiorari. The Wynter Kabimba case in my view does not assist the Petitioner in making out his case for the grant of a stay of execution of the impugned decision as the proceedings in this case are not judicial review proceedings brought pursuant to Order 53 of the White Book. While the Petitioner contends that the petition has raised important issues for the Court to consider and that the facts of the case herein demonstrate special circumstances on which a stay of the decision can be granted; and further that if a stay is not granted, the petition will become otiose and may result in the issuance of orders which cannot be enforced, the Respondent on R22 the other hand argued that the decision complained about has already been implemented and therefore there is nothing for this Court to stay. Having weighed the arguments on both sides, it is my considered view that this is not an appropriate case in which I should exercise my discretion to grant a stay of the Republican President’s decision to remove the Petitioner from the office of High Court Judge for two reasons. Firstly, the decision which the Petitioner seeks this Court to stay has already been implemented as the Republican President has written to the Petitioner informing him that he has removed him from office and requiring him to surrender his letters patent which constituted him as Judge of the High Court of Zambia. Therefore, indeed as the Respondent rightly argued, there is nothing to stay. Secondly, as I observed earlier on in this ruling, the issues raised in the petition regarding whether or not there was a contravention of Articles 143 and 144 of the Constitution in the manner the JCC and the Republican President removed the Petitioner from the office of Judge of the High Court cannot be resolved at this preliminary stage. R23 In the circumstances, as we held in the Mutembo Ncito(9) case, for this Court to grant an order to stay the decision to remove the Petitioner from office of Judge of the High Court at this stage would have the effect of taking a position against the decision by the President without having heard the substantive case. Given the nature of the case set out in the petition, it is my considered view that the petition ought to be heard and determined before any remedies can be awarded should the petition be determined in the Petitioner’s favour. That being the case, I decline to exercise my discretion to grant the Petitioner’s application for an order to stay the Republican President’s decision to remove the Petitioner from office as Judge of the High Court. The application is accordingly dismissed. Each party will bear its own costs of this application. A. M. SITALI JUDGE R24