IN THE HIGH COURT FOR ZAMBIA

2013/HP/0922
HOLDEN AT LUSAKA
(Civil Jurisdiction)

IN THE MATTER OF : ORDER 53 RULE 3 OF THE RULES

OF THE
SUPREME COURT, 1999 EDITION (WHITE
BOOK)

AND

IN THE MATTER OF : AN APPLICATION FOR AN ORDER

FOR
JUDICIAL REVIEW

IN THE MATTER OF : THE DECISION OF THE TRIBUNAL

ON THE
SUPREME COURT AND HIGH COURT
JUDGES TO PROCEED WITH HEARING
AGAINST DR. PHILLIP MUSONDA AFTER
RESIGNATION

AND

IN THE MATTER OF : ARTICLES 14, 18, 21, 23, 98(3) AND

137 OF
THE CONSTITUTION OF ZAMBIA,
CHAPTER 1 OF THE LAWS OF ZAMBIA

BETWEEN:

DR. PHILLIP MUSONDA APPLICANT

AND

ATTORNEY GENERAL RESPONDENT

 J2

CORAM: HONOURABLE LADY JUSTICE F. M. LENGALENGA

THIS 9TH DAY OF MAY, 2014 IN CHAMBERS

For the Applicant : Mr. M. Katolo – Messrs Milner

Katolo &
Associates
M. S. Sikota, SC – Messrs Central
Chambers

For the respondent : Mr. M. M. Lukwasa – Deputy Chief State

Advocate

JUDGMENT

Cases referred to:

1. DERRICK CHITALA (Secretary of the Zambia

Democratic Congress) v ATTORNEY GENERAL (1995 –
1997) ZR 91
2. KITWE CITY COUNCIL v WILLIAM NG’UNI (2005) ZR
(SC)
3. NKUMBULA v ATTORNEY GENERAL (1972) ZR 204
4. SHIPANGA v THE ATTORNEY GENERAL (1977) ZR 196
5. VODACOM v COMMUNICATION AUTHORITY – APPEAL
№ 98 OF 2008
6. WILLIAM HARRINGTON v DORA SILIYA & ATTORNEY
GENERAL (2011) ZR 253 at 254
7. COUNCIL OF CIVIL SERVANTS UNION & OTHERS v
MINISTER OF STATE FOR CIVIL SERVICE (1984) 3 ALL E
R 935
8. R v CROWN COURT AT READING, Ex.p HUTCHINSON &
ANOTHER (1998) 1 ALL E R 333
9. CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS
(1982) 3 ALL E R 141; (1982) 1 WLR 1155 at p. 1160
10. ANISMINIC LTD v FOREIGN COMPENSATION
COMMISSION
 J3

(1969) 2 AC 147; (1969) 1 ALL E R 208

11. ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v
WEDNESBURY CORPORATION (1947) 2 ALL E R 680;
(1948) 1
KB 223

Legislation and Other Works

12. SUPREME COURT PRACTICE, 1999 EDITION (WHITE

BOOK) –
Order 53, Rules 3, 14 (19)(28A)
13. CONSTITUTION OF ZAMBIA, CAP 1 – Articles 14, 18, 21,
23, 91,
98(3)(b) and (5), 137
14. THE JUDICIAL CODE OF CONDUCT, ACT № 13 OF 1999 –
Sections 2, 25(2)
15. BLACK’S LAW DICTIONARY, 5th Edition

This application comes by way of originating notice of motion

for judicial review pursuant to Order 53 Rule 3 of the Rules of the
Supreme Court, 1999 Edition (White Book). It is brought by the
applicant, Dr. Phillip Musonda and directed at the Attorney
General, of the Republic of Zambia the respondent herein
challenging the decision of the Tribunal on the Supreme Court
and High Court Judges to proceed with hearing against Dr. Phillip
Musonda after his resignation.

The reliefs that the applicant seeks are stated hereunder as

follows:
(1) An order of certiorari to move into the High Court
for the purpose of quashing the decisions of the
Tribunal set up to inquire in to the conduct of
Judges delivered on 18th June, 2013 and 28th June,
 J4

2013 as decides that the Tribunal will proceed

with its hearing against Dr. Phillip Musonda
notwithstanding the resignation from office as
Supreme Court Judge.

(2) An order of prohibition restraining the Tribunal

from acting outside or in excess of its jurisdiction
by proceeding against the applicant when the
applicant is no longer a Judicial Officer within the
terms of Article 98(3) of the Constitution of
Zambia as read with the definition of Judicial
Officer in section 2 of the Judicial Code of
Conduct, Act № 13 of 1999.

(3) An order of stay restraining the Tribunal from in

any way proceeding to hers and/or make any
order directions or determinations against the
applicant following his resignation as Supreme
Court Judge.

(4) All further and consequential orders.

The grounds for judicial review are premised on the following:

1. ILLEGALITY
(i) The decision by the Tribunal to proceed with hearing
against the applicant is illegal as the applicant has
exercised his constitutional right to resign under
Article 137 of the Constitution and which resignation
has been accepted by the Appointing Authority. The
applicant has ceased being a Judicial Officer within
the meaning of section 2 of the Judicial Code of
Conduct, Act № 13 of 1999 and the objective of the
 J5

inquiry under Article 98(5) has been achieved by the

resignation and the jurisdiction of the Tribunal
overridden.

(ii) The decision of the Tribunal to proceed against the

applicant is illegal in terms of Article 14 of the
Constitution as it is tantamount to forced labour by
assuming the applicant to be a serving judge when
he has already effectively resigned and also violates
Article 21 of the Constitution which guarantees
freedom of association.

(iii) The decision of the Tribunal to proceed against the

applicant is illegal as it undermines the freedom of
contract of employment between the Appointing
Authority and the applicant and which contract has
been terminated by resignation and which
resignation has been accepted by the Appointing
Authority.

(iv) The decision of the Tribunal to proceed against the

applicant is ultra vires. Article 98(3)(b) and (5) of the
Constitution which presupposes that there must be a
sitting judge against whom a recommendation has to
be made whether to be removed from office or not.
 J6

(v) The decision of the Tribunal to proceed against the

applicant after resignation is illegal in terms of Article
23 of the Constitution and amounts to discrimination
as in similar cases Judge Kabazo Chanda and the
then Director of Public Prosecutions (DPP) Meebelo
Kalima (deceased), the proceedings of the Tribunals
set up against the aforesaid individuals terminated
after the resignation of the concerned individuals.

(vi) The decision of the Tribunal to proceed against the

applicant is illegal and contrary to Article 18 of the
Constitution as it violates the applicant’s
fundamental right to a fair trial in the light of an
order for stay of proceedings granted to Mr. Justice
Kajimanga and Justice Mutuna who are jointly
charged with the applicant. The applicant and Justice
Kajimanga have been jointly charged and have a
joint defence and the decision to proceed against the
applicant alone is discriminatory and deprives the
applicant of the benefit of Judge Kajimanga’s
evidence.

2. EXCESS OF JURISDICTION
(i) The Tribunal is acting in excess of jurisdiction by
insisting to proceed against the applicant when the
mandate of the Tribunal has already been achieved
 J7

through the resignation of the applicant which has

been accepted by the Appointing Authority.

(ii) The Tribunal is acting in excess of jurisdiction by

inviting unknown persons to come to the Tribunal
and testify against the applicant on matters that are
outside the knowledge of such unknown persons as
the allocation of cases is an internal matter within
the Judiciary.

3. UNREASONABLENESS
(a) The decision of the Tribunal to proceed against the
applicant is so unreasonable as the Tribunal wants to
determine a matter that has already been determined
through a resignation and which resignation has been
duly accepted by the Appointing Authority rendering
the Tribunal hearings otiose.

(b) The decision of the Tribunal to proceed against the

applicant is so unreasonable in the Wednesbury sense
in that the Tribunal is determined to spend huge sums
of tax payers’ money on an academic exercise whose
outcome shall not be implementable following the
resignation of the applicant and is contrary to the
Government prudent fiscal measures of reducing
expenses.
 J8

(c) The decision of the Tribunal to proceed against the

applicant is so unreasonable as it ignores and runs
contrary to the Supreme Court’s wise and timely advice
of not to proceed with the Tribunal hearings as there
were constitutional issues involved in the matter and
the decision to proceed is not only unreasonable but
disrespectful to the Supreme Court which is the highest
Court in the land.

The notice of originating motion for judicial review is supported by

affidavit verifying facts relied on for leave to apply for judicial
review, further affidavit in support of notice of originating motion
for judicial review and affidavit in reply. All these three affidavits
were sworn by the applicant, Dr. Phillip Musonda.

In the affidavit verifying facts relied on for leave to apply for

judicial review, filed into court on 3rd July, 2013, Dr. Phillip
Musonda deposed that he is a former Judge of the Supreme Court
of Zambia having been appointed as such on 3 rd May, 2011 as
indicated in the copy of his letters patent exhibited as “PM2.”
He deposed further that by 30th April, 2012, His Excellency the
President of the Republic of Zambia, Mr. Michael Chilufya Sata
suspended him from his office as Supreme Court Judge pending
hearing by the Tribunal set up to investigate alleged professional
misconduct. He stated further that on 9 th May, 2013, the
Supreme Court of Zambia delivered a judgment wherein the Court
 J9

advised against the Tribunal proceeding with the hearing on the

ground that the appeal by Justices Charles Kajimanga and Nigel
Kalonde Mutuna who are appearing in the Tribunal with the
applicant, raised serious constitutional issues. The applicant
deposed that notwithstanding the said advice, the Tribunal
decided to proceed against him on the ground that he was not
covered by the stay of proceedings granted earlier by the Ndola
High Court to Justices Kajimanga and Mutuna.

He deposed further that by a letter dated 13 th May, 2013, he

instructed his advocates to write to the Secretary of the Tribunal
raising preliminary issues for Justices T. K. Ndhlovu and N. W.
Mwanza to recuse themselves on grounds of alleged impartiality
and bias. A copy of the said letter was exhibited as “PM3.” He
stated that on 28th May, 2013, the Tribunal heard the preliminary
issues and the two named Judges refused to recuse themselves
without offering any reasons for such refusal. The applicant
further deposed that following the refusal of Justices Ndhlovu and
Mwanza to recuse themselves, it became apparent to him that he
would not get a fair hearing from the Tribunal. Therefore, on 4 th
June, 2013, he wrote a letter to His Excellency the President of
the Republic of Zambia informing him of his decision to resign
from the Supreme Court and he exhibited as “PM4,” a true copy
of the said letter. Dr. Phillip Musonda stated that following the
aforesaid letter, he instructed his advocates to write to the
Tribunal Secretary informing her that since he had resigned from
 J10

his position as Supreme Court Judge and he was no longer a

Judicial Officer, the Tribunal should not proceed against him. He
exhibited a copy of the said letter dated 7 th June, 2013 as “PM5.”
He stated that, however, the Secretary to the Tribunal wrote to
his advocates advising them to raise the issue formally before the
Tribunal for consideration at the next hearing. A copy of the said
letter was exhibited as “PM6.” The Tribunal ruled that it would
proceed with the hearing against him because it was of the view
that his letter of 4th June, 2013 was a mere request to be retired in
the national interest and not an effective resignation.

The applicant deposed further in paragraph 16 of his

affidavit that following the said ruling, he wrote another letter
dated 18th June, 2013 to the Republican President informing him
of his unequivocal decision to resign from his position as Supreme
Court Judge. He stated that his resignation was accepted by the
Acting Chief Justice as Chairperson of the Judicial Service
Commission acting for and on behalf of the President. He
exhibited as “PM7” and “PM8,” respectively true copies of his
letter and the reply dated 19 th June, 2013 from the Acting Chief
Justice.

By a letter dated 21st June, 2013 the applicant’s advocates

advised the Tribunal through the Secretary that it lacked
jurisdiction to proceed against him because the applicant had
 J11

effectively resigned. A copy of the said letter is exhibited as

“PM9.”

He stated that despite the fact there was clear evidence that
he had resigned and was no longer a judicial officer, on 28 th June,
2013 the Tribunal ruled that it still has jurisdiction to proceed
against him. The applicant stated that he reasonably believes
that the Tribunal is acting unreasonably, illegally and in excess of
jurisdiction by insisting on proceeding with the hearing against
him when its jurisdiction has been supplanted and/or overridden
by the exercise of his constitutional right to resign under Article
137 of the Constitution and the acceptance of that resignation by
the appointing authority.

A further affidavit in support of notice of originating motion

for judicial review was filed into court on 16 th August, 2013. Dr.
Phillip Musonda deposed therein that following his letter of 4 th
June, 2013 to the President of the Republic of Zambia, the
Attorney General of the Republic of Zambia, Mr. Mumba Malila, SC
was reported in the Post Newspaper of 10 th June, 2013 as saying
that his resignation had pre-empted the purpose of the Tribunal.
He exhibited a copy of the Post newspaper extract as “PM2.”
The applicant deposed further that since the publication of the
aforesaid article, he had never seen or read any other article
where the Attorney General has challenged or refuted the words
 J12

attributed to him in the article: “Musonda has pre-empted

Tribunal.”

He stated further that following the publication of the said

article, he had a legitimate expectation that all proceedings
against him in the Tribunal would be dropped in accordance with
the reasoned opinion of the learned Attorney General. The
applicant further stated that he was extremely saddened when
the learned Attorney General proceeded to prosecute him in the
Tribunal contrary to his well stated position in the aforesaid
article.

The applicant stated that he reasonably believes that having

resigned from his position as Supreme Court Judge, he is no
longer a judicial officer within the meaning of section 2 of the
Judicial (Code of Conduct) Act № 13 of 1999 and cannot be
amenable to the jurisdiction of the Tribunal which was set up to
probe the conduct of judicial officers. Further, with reference to
charges 1 to 5 contained in the statement of allegations served
on him through his advocates, he stated that he reasonably
believes that they are illegal in terms of the provisions of section
25(2) of the Judicial (Code of Conduct), Act № 13 of 1999. As
regards charge no. 6, he stated that it is equally illegal on two
grounds:
 J13

(a) It is outside the terms of reference given to the

Tribunal and as such, is in excess of jurisdiction

(b) The allegations in the charge are outside the

ambit of the offence of judicial misconduct as
defined by the Judicial (Code of Conduct) Act №
13 of 1999. Dr. Phillip Musonda further deposed
that he reasonably believes that there are
extraneous matters being taken into
consideration such as the judgment he delivered
in the case of TEDWORTH PROPERTIES INC v THE
ANTI-CORRUPTION COMMISSION (2003/HP/0428).
He exhibited a copy of the said judgment as “PM8.”

On 23rd August, 2013, the respondent filed into court an

affidavit in opposition to summons for leave to apply for judicial
review. It was sworn by one Mumba Malila, Attorney General of
the Republic of Zambia. He responded to paragraph 4 of the
applicant’s affidavit in support by stating that the applicant
confirmed that the Appointing Authority for Supreme and High
Court Judges is the President of the Republic of Zambia. He
further deposed that the President legally suspended the
applicant from office as Supreme Court Judge and appointed a
Tribunal to inquire into the applicant’s alleged misconduct as a
Judge at the time the applicant held office. He stated that the
Tribunal’s mandate is inter alia, to investigate the alleged
 J14

professional misconduct of the applicant as a judicial official, and

thereafter advise/recommend to the appointing authority on a set
of findings/facts. The Attorney General stated further that he
verily believes that while the applicant may have resigned, the
complaint of alleged misconduct is not automatically extinguished
by such resignation as the mandate of the Tribunal appointed is
to ascertain the facts and make recommendations which may
help the President to deal with similar situations in the future. He
deposed that the Supreme Court in its judgment of 9 th January,
2013, held that the President properly exercised his powers under
Article 98 of the Constitution and merely stated that "it would be
advisable for the Tribunal not to proceed.” The said Mumba
Malila deposed further that mere advice from the Supreme Court
is not legally binding especially in view of the finding that the
Tribunal was legally constituted.

The deponent further stated that it is regrettable that the

applicant could believe and rely on newspaper reports when the
proper record of what he said and did is properly recorded in the
Tribunal proceedings. He added that it was not his wish to
produce or rely on newspaper articles which alleged impropriety
on the party of the applicant while he served as a Judge and
which articles the applicant did not publicly refute. He stated
further that the applicant’s advocates were present during the
hearings and had the opportunity to follow the proceedings
 J15

instead of expecting the Tribunal to avail them transcribed rulings

for purposes of obtaining instructions from him.

The applicant filed into court on 30th August, 2013 an

affidavit in reply whose contents are mostly arguments and
contrary ………………………………….
………………………………………………………………………………………
…………………..
Therefore, I will not dwell on it as I believe that the same would
be best addressed in the arguments or submissions. This also
applies to the supplementary affidavit filed into court on 23rd
September, 2013. With respect to the affidavit in opposition to
the applicant’s supplementary affidavit filed into court on 9 th
October, 2013, the deponent Mumba Malila, Attorney General of
the Republic of Zambia, stated that further to the provisions of
Articles 91 and 98 of the Constitution, Article 91(2) in particular
regulates conduct of the judicial officers through the provisions of
the Judicial Code of Conduct Act, 1999 where complaints against
judicial officers are tabled through the Judicial Complaints
Authority.

The applicant filed into court on 16th September, 2013 heads

of arguments in support of the Notice of Originating Motion for
judicial review. He stated therein that he filed for judicial review
claiming the following reliefs namely:
 J16

(i) An order of certiorari to remove into the High

Court for purposes of quashing the decisions of
the Tribunal to proceed with the hearing
against the applicant when the applicant has
ceased being a Judicial Officer within the
meaning of section 2 of the Judicial Code of
Conduct Act No. 13 of 1999 by way of
resignation.

(ii) An Order of Prohibition directed at the Tribunal

set up to investigate the conduct of Judges
Musonda, Kajimanga and Mutuna restraining
such tribunal from proceeding against the
Applicant for lack of jurisdiction following the
resignation of the Applicant as Supreme Court
Judge.

(iii) An Order of Stay restraining the Tribunal from

in any way proceeding to hear and/or make any
order directions or determinations against the
Applicant following his resignation as Supreme
Court Judge.

(iv) That all necessary and consequential directions

be given.
 J17

The grounds upon which the judicial review application is

premised are as follows;

1. ILLEGALITY:
(i) The decision by the Tribunal to proceed with
hearing against the Applicant is illegal as the
Applicant has exercised his constitutional right
to resign under Article 137 of the Constitution
and which resignation has been accepted by
the Appointing Authority. The Applicant has
ceased being a Judicial Officer within the
meaning of Section 2 of the Judicial Code of
Conduct Act No. 13 of 1999 and the objective
of the Inquiry under Article 98(5) has been
achieved by the resignation and the
jurisdiction of the Tribunal overridden.

(ii) The decision of the Tribunal to proceed against

the Applicant is illegal in terms of Article 14 of
the Constitution as it is tantamount to forced
labour by assuming the Applicant to be a
serving Judge when he has already effectively
resigned and also violates Article 21 of the
Constitution which guarantees freedom of
association.
 J18

(iii) The decision of the Tribunal to proceed against

the applicant is illegal as it undermines the
freedom of contract of employment between
the Appointing Authority and the Applicant and
which contract has been terminated by
resignation and which resignation has been
accepted by the appointing authority.

(iv) The decision of the Tribunal to proceed against

the Applicant is ultra vires Article 98(3)(b) and
(5) of the Constitution which presupposes that
there must be a sitting judge against whom a
recommendation has to be made whether to be
removed from office or not.

(v) The decision of the Tribunal to proceed against

the Applicant after resignation is illegal in
terms of Article 23 of the Constitution and
amounts to discrimination as in similar cases of
Judge Kabazo Chanda and the then DPP
Mebeelo Kalima (deceased), the proceedings of
the Tribunals set up against the aforesaid
individuals terminated after the resignation of
the concerned individuals.

(vi) The decision of the Tribunal to proceed against

the Applicant is illegal and contrary to Article
 J19

18 of the Constitution as it violates the

Applicant’s fundamental right to a fair trial in
the light of an Order for Stay of Proceedings
granted to Mr. Justice Kajimanga and Justice
Mutuna who are jointly charged with the
Applicant. The Applicant and Justice
Kajimanga have been jointly charged and have
a joint defence and the decision to proceed
against the applicant alone is discriminatory
and deprives the applicant of the benefit of
Judge Kajimanga’s evidence.

2. EXCESS OF JURISDICTION
(i) The Tribunal is acting in excess of jurisdiction
by insisting to proceed against the Applicant
when the mandate of the Tribunal has already
been achieved through the resignation of the
Applicant which has been accepted by the
Appointing Authority.

(ii) The Tribunal is acting in excess of jurisdiction

by inviting unknown persons to come to the
Tribunal and testify against the Applicant on
matters that are outside the knowledge of such
unknown persons as the allocation of cases is
an internal matter within the Judiciary.
 J20

3. UNREASONABLENESS
(a) The decision of the Tribunal to proceed against
the Applicant is so unreasonable as the Tribunal
wants to determine a matter that has already
been determined through a resignation and
which resignation has been duly accepted by the
Appointing Authority rendering the Tribunal
hearings otiose.

(b) The decision of the Tribunal to proceed against

the Applicant is so unreasonable in the
Wednesbury sense in that the Tribunal is
determined to spend huge sums of tax payers’
money on an academic exercise whose outcome
shall not be implementable following the
resignation of the Applicant and is contrary to
the Government prudent fiscal measures of
reducing expenses.

(c) The decision of the Tribunal to proceed against

the Applicant is so unreasonable as it ignores
and runs contrary to the Supreme Court’s wise
and timely advice of the not to proceed with the
Tribunal hearings as there were constitutional
issues involved in the matter and the decision to
proceed is not only unreasonable but
 J21

disrespectful to the Supreme Court which is the

Highest Court in the Land.

Thereafter, learned Counsel for the applicant, Mr. Milner

Katolo proceeded to analyse each of the grounds relied on
with the help of decided cases and to clearly demonstrate
how each of the grounds applies to the facts of this case.

With regard to the ground of illegality he referred this

court to the case of DERRICK CHITALA (Secretary of the
Zambia Democratic Congress) v ATTORNEY GENERAL 1
in which the Supreme Court at page 96 opined with regard
to illegality as follows:

“By ‘illegality’ as a ground for judicial review, I

mean that
the decision maker must understand correctly
the law that regulates his decision making power
and must give effect to it. Whether he has or not
is par excellent a justifiable question to be
decided, in the event of dispute by those
persons, the judges, by whom the judicial power
of the State is exercisable.”

In the instant case, learned Counsel for the applicant submitted

that the Tribunal failed to understand correctly the provisions of
 J22

Article 98(3)(b) of the Constitution which empowers them to hear

a matter against a serving judge with a view to making a
recommendation whether to have such Judge removed or not.
He argued that there is no provision under the Constitution for the
Tribunal to proceed against a judge who has removed himself
from office by way of resignation. He submitted that Article 137
of the Constitution is very clear to that effect and provides:

“137(1) Any person who is appointed or elected to

any office
established by this Constitution may resign from that
office by writing under his hand addressed to the
persons or authority by whom he was appointed or
elected.

(2) The resignation of any person from any office

established by the Constitution shall take effect when
the writing signifying the resignation is received by
the person or authority to whom it is addressed or by
any person authorised by that person or authority to
receive it.

Mr. Milner Katolo further relied on the case of KITWE CITY

COUNCIL v WILLIAM NG’UNI2 where it was held inter alia:
 J23

“Section 32 of the Local Authorities Superannuation

Fund Act
provides that if a member is dismissed from the
service for his grave misconduct, dishonesty or fraud,
or if he is allowed to resign or retire in order to avoid
such dismissal, he shall receive a lump sum equal to
the amount of the contributions paid by him and for
purposes of this section any resignation tendered by
a member during an inquiry into his conduct and
before the result of such inquiry is announced shall
be deemed to be any resignation in order to avoid
dismissal.”

It was submitted further by learned Counsel for the applicant that

the applicant’s resignation before the Tribunal could commence
hearing witnesses created a juridical impossibility for the Tribunal
to proceed against him in terms of their powers under Article
98(3) of the Constitution. It is further contended that the
Tribunal’s decision to proceed against the directive in the
Supreme Court judgment is illegal. Mr. Milner Katolo submitted
that the Supreme Court in its judgment advised that the Tribunal
should not proceed because of the Constitutional issues raised in
the appeal. He likened that judgment to advisory opinions of the
Judicial Committee of the Privy Council. He referred this Court to
the case of NKUMBULA v ATTORNEY GENERAL3 in which Baron
DCJ (as he then was) observed:
 J24

“It is not the function of the Court to advise

Government, but
that of the Attorney General. The function of the
Court is to adjudicate disputes between individuals
and between individual and government.”

Learned Counsel for the applicant also referred the Court to

SHIPANGA v THE ATTORNEY GENERAL4 wherein Silungwe, CJ
(as he then was) commented on the State’s failure to make a
return to the writ of habeas corpus as follows:

“The Government cannot he heard to say they cannot

obey the
Court judgment in the interest of the liberators’
struggle.”

In the instant case, Mr. Milner Katolo also dealt with the issue of
legitimate expectation. He submitted that the protection of
expedition is bound up with the protection of equality and that
past experience is generally crucial in the formulation of
expectations and information about specific past behaviours. He
submitted further that discriminatory conduct will thus necessarily
thwart expectations. He further submitted that laws forbidding
discrimination protect expectations of equal treatment which is a
significant dimension of the right to equality. It is the applicant’s
 J25

contention in the statement on the ex-parte application for leave

to apply for judicial review that the decision to proceed against
him after he resigned is discriminatory and illegal in terms of
Article 23 of the Constitution of Zambia. He based his argument
on the ground that similar cases of the tribunals set up to probe
Judge Kabazo Chanda and Meebelo Kalima (deceased) abated
when the said individuals resigned from their positions.

The applicant submitted through Counsel that the learned

Attorney General of the Republic of Zambia, as the Chief Legal
Advisor to the Government took cognisance of that past practice
upon the applicant’s resignation when he announced that the
applicant’s resignation had pre-empted the Tribunal. He
submitted further that that statement as reported in the Post
Newspaper exhibited as “PM2,” was the correct interpretation of
the Tribunal’s jurisdiction under Article 98(5) of the Constitution.
He observed that, however, later he decided to prosecute and he
argued that under the doctrine of legitimate expectation he is
estopped or barred from doing so. Counsel for the applicant
submitted that apart from the Attorney General making a
pronouncement his office has been consistent by not prosecuting
all those who have resigned and, therefore, the applicant
expected that policy to apply to him as it applied to Judge Kabazo
Chanda and Mr. Meebelo Kalima (late former DPP).
 J26

Learned Counsel for the applicant argued that the doctrine

of legitimate expectation is binding on the learned Attorney
General and the High Court as it has been adopted in the
Zambian administrative law jurisprudence by the Supreme Court
in the case of VODACOM v COMMUNICATION AUTHORITY5
where the Court stated as follows:

“Legitimate expectation arises where a decision

maker has led
someone to believe that they will receive or retain a
benefit or advantage including that a hearing will be
held before a decision is taken………The protection of
legitimate expectation is at the root of the
constitutional principle of the rule of law, which
requires regularity, predictability and certainty in
government dealings with the public. The doctrine of
legitimate expectation derives from justification from
the principle of allowing the individual to rely on
assurances given, and to promote certainty and
consistent administration.”

It was submitted that the case referred to is binding on the

Attorney General and the High Court and that to proceed with the
Tribunal hearing would be an abuse of power, unconstitutional
and undermine the Supreme Court’s adjudicatory supremacy.
 J27

Learned Counsel for the applicant also dealt with the issue of
the allegations levelled against the applicant. He submitted that
the allegations ought to have been examined to determine if they
were intra vires the conduct regulated under the Judicial Code of
Conduct, Act № 13 of 1999. He contended that to lay charges of
misconduct outside the Judicial Code of Conduct, such as in this
case violates the Constitution and undermines Parliament’s
legislative supremacy under article 62 of the Constitution. It was
further contended that the charges are illegal, unconstitutional
and highly prejudicial as he would be defending illegal charges at
a cost and would be embarrassed. Mr. Katolo submitted that any
decision outside the terms of reference and the Judicial Code of
Conduct will be quashed as in the case of WILLIAM
HARRINGTON v DORA SILIYA AND ATTORNEY GENERAL 6
where it was held:

“The Tribunal’s jurisdiction was confined to

investigating the
1st respondent’s alleged breach of Part II of the
Parliamentary and Ministerial code of Conduct Act.
The Tribunal was not asked to investigate the 1st
respondent for the alleged breach of the
Constitution…………The Tribunal exceeded its
jurisdiction when it pronounced itself on breach of
Constitution….”
 J28

In the instant case, on the issue of excess of jurisdiction by the

Tribunal, learned Counsel for the applicant submitted that when
the applicant resigned his action was consented to by the
Appointing Authority that is superior to the Tribunal. He added
that His Excellency the President is the Appointing Authority of
both the applicant and the Tribunal. He argued that if the
Tribunal is allowed to proceed it will be violating Article 98(5) of
the Constitution which restricts the power of the Tribunal to
recommend removal or not of a Judge. He submitted that in this
case, there is no one against who removal or otherwise lies by
exceeding its jurisdiction.

Mr. Milner Katolo further submitted that the Tribunal has

exceeded its jurisdiction by inviting unknown persons to go and
testify against the applicant on matters outside the knowledge of
such persons, as the allocation of cases is an internal matter
within the Judiciary. He contended that the Tribunal exceeded the
terms of reference and as such violated the Judicial Code of
Conduct and Article 91(2) of the Constitution by undertaking a
‘global inquiry.’

The respondent filed submissions opposing the originating

notice of motion for judicial review for an order for certiorari,
prohibition and declaration. He restated the reliefs sought by the
applicant and the grounds upon which the reliefs are sought.
 J29

It is submitted that the proceedings by the applicant before

this Court are premised on the applicant’s understanding that
upon resignation as Judge of the Supreme Court for Zambia, any
investigation by whatever name, instituted against him ceased
upon his vacating the office.

The respondent submitted further that the applicant even

alleges illegality on the part of the Tribunal for proceeding with
the hearing since the applicant has exercised his constitutional
right to resign under Article 137 of the Constitution. It is the
respondent’s contention that the applicant’s resignation is not an
issue before the Tribunal since the Tribunal was not asked to
determine whether as a matter of law the Judge has resigned or
not. The respondent submitted that the purpose of the Tribunal is
to inquire into the alleged misconduct at the time the applicant
held office as Judge. Further, that the Tribunal’s investigation is
intended to establish the veracity of the allegations. It is further
submitted that if the allegation is proved, it will be treated as a
relevant fact towards the advice or recommendation. The
argument advanced is that what is sufficient is that the applicant
was a Judge at the time facts giving rise to the complaint arose.

It is further contended that the applicant is labouring under a

misconception that a resignation extinguishes an inquiry when it
does not. The respondent submitted that it is incorrect to form an
opinion that the Tribunal’s objective is to remove the applicant
 J30

from office. It was submitted further that Article 98(3) and (5)
presupposes that judicial conduct must be inquired into and a
report preferred. Thereafter, advice or recommendations which
include a removal may follow. The respondent argued that there
is nothing to stop a Tribunal from inquiring even after a
resignation and then proceeding to report, advise and/or
recommend while at the same time consider the fact that the
applicant is no longer a Judge. It was further submitted that the
applicant’s action of rushing to court to halt the investigations is
premature. This argument was fortified by reliance on the case of
HARRY MWAANGA NKUMBULA v ATTORNEY GENERAL.

The respondent referred the court to page 740 of BLACK’S

LAW DICTIONARY, 5th Edition where the learned author defines
“investigate” as:

“…to follow up step by step by patent inquiry or

observation.
To trace or track; to search into, to examine and
inquire into with care and accuracy; to find out by
careful inquisition; examination etc.”

It is contended that from this definition it is abundantly clear that

a decision that can be subject to judicial review must be the kind
that is final in nature or one that is made after all issues have
been considered by the Tribunal.
 J31

The respondent submitted that the Tribunal has made no

such decision and relied on the case of COUNCIL OF CIVIL
SERVANTS UNION & OTHERS v MINISTER OF STATE FOR
CIVIL SERVICE7. In that case it was observed that a decision
under judicial review must have consequences which affect some
person or body of persons other than the decision maker although
it may affect him too. Further, in the case of R v CROWN
COURT AT READING, Ex.p. HUTCHINSON AND ANOTHER8,
Lloyd, L J stated that judicial review is not to be used as a means
for obtaining a decision on a question of law in advance of the
hearing. In the present, it is contended that this is precisely what
the applicant is attempting to do by seeking to challenge the
statements. The respondent submitted that, therefore, the only
recourse that the applicant has is to wait for the Tribunal hearing
to be conducted for him to challenge the outcome, if necessary.
They prayed that the application be dismissed with costs.

I have carefully considered the application for judicial review,

the affidavit evidence, submissions and authorities which have
been of great assistance. The facts upon which the reliefs are
sought by the applicant have already been elaborately stated and
I, therefore need not restate them. The grounds relied upon to
support the claims for which the reliefs are sought have also been
sufficiently stated and I will deal with them later. However,
before proceeding to consider the merits of the application for
 J32

judicial review, I would like to make brief reference to the basic

principles underlying the process of judicial review. Under Order
53, Rule 14(19) of the Supreme Court Rules, 1999 Edition at page
902, the learned authors dealt with the nature and scope of
judicial review which constitute the basic principles to be
considered in granting the remedy of judicial review. They stated
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.

In CHIEF CONSTABLE OF NORTH WALES POLICE v

EVANS9 at p. 143 Lord Hailsham L. C. summed the position as
follows:

“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.”

The learned authors stated further that a decision of an inferior

court or a public authority may be quashed (by an order of
certiorari on an application for judicial review) where that court or
 J33

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.

They stated further that the court will not, however, on a

judicial review application act as a “court of appeal” from the
body concerned, nor will the court interfere in any way with the
exercise of any 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.

From the aforestated guidelines, this court will proceed to

consider the respondent’s Tribunal’s decision-making process of
proceeding with the hearing against Dr. Phillip Musonda after his
resignation. The decision making process has been challenged on
its decision to proceed with the hearing against the applicant
after his resignation. The grounds for judicial review are
premised on the following:

(i) Illegality
(ii) Excess of jurisdiction
(iii) Unreasonableness
 J34

I will proceed to consider each ground in relation to the evidence

or facts before this court and the law.

On the ground of illegality, the applicant advanced a number

of arguments to demonstrate the nature of the illegality alleged
against the respondent’s Tribunal’s decision to proceed with the
hearing against Dr. Phillip Musonda even in the face of his
resignation as a Judge from the Judiciary. The same were already
elaborated stated in the grounds for judicial review so I will not
restate them to avoid being repetitive.

Lack of or excess of jurisdiction entails illegality in the

exercise of the powers by the decision-making process. The
applicant alleged that the Tribunal exceeded its jurisdiction by
deciding to proceed with the hearing against the applicant after
his resignation as a Judge.

In the case of COUNCIL OF CIVIL SERVICE UNIONS v

MINISTER OF STATE FOR CIVIL SERVICE, Lord Diplock
explained the meaning of illegality when he stated:

“By ‘illegality’ as a ground for judicial review I mean

that the
 J35

decision maker must understand correctly the law

that regulates his decision making power and must
give effect to it.”

This was cited with approval by the Supreme Court of Zambia in

the case of DERRICK CHITALA (Secretary of the Zambia
Democratic Congress) v ATTORNEY GENERAL.

Based on the definition of illegality by Lord Diplock, it is the

applicant’s contention that the Tribunal set up to inquire into the
conduct of three named Judges, failed to understand correctly the
provisions of Article 98(3)(b) of the Constitution which empowers
them to hear a matter against a serving Judge with a view to
making a recommendation whether to have such removed or not.
It was further submitted that there is no provision under the
Constitution for the Tribunal to proceed against a Judge who
removes himself from office by way of resignation. Learned
Counsel for the applicant referred to Article 137 of the
Constitution about resignation and when it becomes effective. He
likened the instant case to that of KITWE CITY COUNCIL v
WILLIAM NG’UNI where the Supreme Court held inter alia that
under section 32 of the Local Authorities Superannuation Fund
Act, if a member is allowed to resign or retire to avoid dismissal
from service for his grave misconduct, dishonesty or fraud during
an inquiry into his conduct and before the result of such inquiry is
announced, it shall be deemed to be a resignation.
 J36

Article 98(3) of the Constitution of Zambia, Cap. 1 of the

Laws of Zambia provides:

“(3) If the President considers that the question of

removing
a judge of the Supreme Court or the High Court under
this Article ought to be investigated, then –

(a) he shall appoint a Tribunal which shall consist of

a Chairman and not less than two other
members, who hold or have held high judicial
office;

(b) the Tribunal shall inquire into the matter and

report on the facts thereof to the President and
advise the President whether the judge ought to
be removed from office under this Article for
inability as aforesaid or for misbehaviour.”

Further in the applicant’s first ground for judicial review

under the heading “illegality,” he stated that the objective
of the inquiry under Article 98(5) of the Constitution has
been achieved by his resignation and the jurisdiction of the
Tribunal overridden. The said Article 98(5) provides as
follows:
 J37

“(5) If the question of removing a judge of the

Supreme
Court or of the High Court from office has been
referred to a Tribunal under Clause (3), the
President may suspend the judge from
performing the functions of his office, and any
such suspension may at any time be revoked by
the President and shall in any case cease to have
effect if the Tribunal advises the President that
the judge ought to be removed from office.”

The applicant’s contention that the Tribunal’s decision to

proceed against the applicant is ultra vires is further based on
Article 98(3)(b) and (5)’s presupposition that there must be a
sitting judge against whom a recommendation has to be made
whether to be removed from office or not.

Upon consideration of the aforegoing provisions of Article

98(3)(b) and (5) of the Constitution, I accept that the President’s
purpose of appointing a tribunal to inquire into the conduct of the
three named judges was to receive a report on the facts thereof
and a recommendation on what action to take in terms of
whether or not to have the judge removed for inability or for
misbehaviour. Further under Clause 5 of Article 98, the President
may suspend and remove a judge from office. By suspension it is
clear that such judge should be a serving judge who may be
 J38

suspended and possibly removed from office. This also entails

that this provision cannot be invoked or applied against a judge
who has left his office by way of resignation as in the case of the
applicant herein.

According to the affidavit evidence and exhibits before this

court (“PM7” dated 18th June, 2013 being the letter of
resignation to His Excellency the President of the Republic of
Zambia and “PM8” dated 19th June, 2013 from the Acting Chief
Justice accepting the resignation as Chairperson of the Judicial
Service Commission acting for and on behalf of the President) the
applicant ceased being a judicial officer when his resignation was
accepted in accordance with the provisions of Article 137(2) of
the Constitution.

In trying to fortify the applicant’s argument on the ground of

illegality of the Tribunal’s decision to proceed with the hearing
against the applicant, learned Counsel submitted that there is no
provision under the Constitution for the tribunal to proceed
against a judge who has resigned.

The respondent’s contention, however, is that the tribunal’s

purpose is to inquire in to the alleged misconduct of the applicant
at the time he held office as a Judge and to establish the veracity
of the allegations and to make recommendations.
 J39

In considering the issue of illegality I also considered the

Tribunal’s mandate which was to inquire into the conduct of three
judges as aforestated. By proceeding with the hearing against
the applicant who has resigned, the question that arises is
whether the tribunal would be acting ultra vires its powers under
the mandate. Since there is no provision under the Constitution
to proceed to make inquiry against a retired judge where would
the Tribunal derive its authority to proceed its hearing against the
applicant as a non judicial officer. As there is no provision of law
to support the Tribunal’s decision to proceed with the hearing
against the applicant, I am inclined to accept that the Tribunal’s
decision to proceed against the applicant without provisions of
the law to support such decision is illegal and I do so accept it.

I further accept that part of the objective of the inquiry under

Article 98(5) of the Constitution has been achieved by the
applicant’s resignation and the Tribunal’s jurisdiction overridden.
Although the actual inquiry has not been carried out, thereby
depriving those seeking answers the satisfaction of knowing the
truth or veracity of the allegations against the applicant. The
issue that arises, however, is for what purpose and at what and
whose expense should this hearing proceed. The rationale of
proceeding with the hearing against the applicant will be dealt
with under irrationality or unreasonableness.
 J40

The applicant also alleged that the Tribunal’s decision to

proceed against him is illegal in terms of Article 14 of the
Constitution as it is tantamount to forced labour by assuming the
applicant to be a serving judge when he has already effectively
resigned and also violates Article 21 of the Constitution which
guarantees freedom of association. Since the applicant has not
presented proof of forced labour by the respondent or violation of
Article 21 with regard to his freedom of association, I find no
illegality of the Tribunal’s decision in this regard.

As regards the allegation of the Tribunal’s decision being

illegal for undermining the freedom of contract of employment
between the Appointing Authority and the applicant I am not
satisfied that the applicant has sufficiently proved this allegation.
I find that this allegation is vague and ambiguous in its content
and I cannot accept that the Tribunal’s decision is illegal based on
it.

Dr. Phillip Musonda also challenged the Tribunal’s decision

for illegality in terms of Article 23 of the Constitution on the basis
of discrimination. He alleged that he was being treated differently
in relation to similar cases of proceedings of tribunals set up
against other individuals which were terminated after their
resignation. He gave examples of Judge Kabazo Chanda, former
High Court Judge and late Mr. Meebelo Kalima, former Director of
Public Prosecutions. The example of the named individuals
 J41

together with the authority of KITWE CITY COUNCIL v WILLIAM

NG’UNI supports the applicant’s argument on discrimination. I
am, however, of the considered view that the KITWE CITY
COUNCIL case is similar only to the extent that the respondent
was allowed to resign before the result of an inquiry is announced
to avoid dismissal.

From the examples given, I accept that the Tribunal’s

decision to proceed with the hearing against the applicant is
discriminatory based on past cases where constitutional office
holders have been allowed to resign and Tribunal proceedings
have been terminated or discontinued.

In view of the fact that the applicant has succeeded on most

of his allegations under the ground of illegality of the Tribunal’s
decision to proceed against the applicant I, accordingly, accept
that the decision by the Tribunal to proceed against the applicant
is illegal for the reasons stated.

The applicant’s second ground for judicial review is excess of

jurisdiction based on the following allegations:

(i) that the Tribunal is acting in excess of

jurisdiction by insisting on proceeding with the
hearing against the applicant when the mandate
of the Tribunal has already been achieved
 J42

through the applicant’s resignation as Judge and

which resignation has been accepted by the
appointing Authority.

(ii) The Tribunal is acting in excess of jurisdiction by

inviting unknown persons to come and testify
before the Tribunal against the applicant on
matters that are outside the knowledge of such
unknown persons as the allocation of cases is an
internal matter within the Judiciary.

According to the learned authors of the Supreme Court Practice,

1999 Edition, Volume 1 at page 906 under Order 53 Rule 14(28A)
with reference to want or excess of jurisdiction, if an inferior court
or tribunal or a public authority charged with a public duty acts
without jurisdiction or exceeds its jurisdiction judicial review will
lie. Based on the decision of the House of Lords in ANISMINIC
LTD v FOREIGN COMPENSATION COMMISSION10 where the
decision of an administrative authority or tribunal is founded,
wholly or partly, on an error of law, the authority or tribunal has
acted outside its jurisdiction and accordingly its decision is liable
to be quashed. This means that a distinction must be drawn
between errors of law which go to jurisdiction and errors of law
which do not.
 J43

From the House of Lords’ decision on want or excess of

jurisdiction and its guidance for the need to draw a distinction
between errors of law which go to jurisdiction and errors of law
which do not, the question that arises is whether the Tribunal by
deciding to proceed with the hearing against the applicant has
exceeded its jurisdiction as alleged by the applicant.

The applicant based his allegation on the argument that the

Tribunal’s mandate has already been achieved through his
resignation as a Judge. The other argument advanced by the
applicant is that the Tribunal exceeded its jurisdiction by inviting
unknown persons to go and testify against him on matters that
are outside their knowledge.

With regard to the applicant’s allegation that the Tribunal is

acting in excess of jurisdiction by insisting to proceed against the
applicant when the Tribunal’s mandate has already been
achieved through the applicant’s resignation which has been
accepted by the appointing Authority this court has to determine
whether or not the Tribunal’s mandate has been achieved against
the applicant. The Tribunal’s mandate is to inquire into the
conduct of three named judges and to submit a report with
recommendations whether to suspend or remove the judges. In
the applicant’s case he opted to resign in order to avoid the
inquiry amid allegations that the Tribunal’s composition which
included two retired Zambian judges would not afford him a fair
 J44

and just hearing as the two retires Zambian judges had had
differences with him in the past. He decided to follow the
example of Judge Kabazo Chanda, former High Court Judge who
opted to resign to avoid a Tribunal inquiry of his conduct. He was
allowed to resign.

Dr. Phillip Musonda also referred to the late Mebeelo

Kalima’s resignation as Director of Public Prosecutions to avoid a
Tribunal inquiry and he was allowed to resign. The contention by
the applicant that the Tribunal has already been achieved through
the applicant’s resignation has been rejected by the respondent
who argued that the applicant’s resignation does not extinguish
the inquiry. The respondent argued that there is nothing to stop
a Tribunal from inquiring even after a resignation and then
proceed to report, advise and/or recommend while at the same
time consider the fact that the applicant is no longer a judge.
They also submitted that the application for judicial review is
premature as the decision being challenged is not the final
decision of the Tribunal.

I am of the considered view that the issue of finality of the

Tribunal’s decision does not arise in this case because it is not the
final decision that is in contention but the decision relating to the
process being adopted by the Tribunal that is being challenged.
 J45

Whilst I accept that the resignation does not extinguish the

inquiry or the allegations levelled at the applicant, it is the
Tribunal’s insistence to proceed with the inquiry not so much to
establish the veracity of the allegations but to make a
recommendation which would serve no purpose in terms of Article
98(3) and (5) of the Constitution that is questionable. By the
applicant’s resignation from his position as a Supreme Court
Judge, he usurped the power of the Tribunal to make a
recommendation for his removal if the need had arisen.

Even though I accept that the applicant’s resignation does

not extinguish the allegations or charges against him and that it
would have been desirable to establish the veracity of the
allegations or to have the applicant clear his name, his option to
resign ought to be respected. The question that begs an answer
is what purpose proceeding with the hearing against the applicant
would serve at great expense of using tax payers’ money.

I am further of the considered view that it is unfair and

unjust to use this Tribunal as an example against would-be future
misconduct as has been suggested by the respondent. Each case
must be treated according to the facts and its own merits at any
given time and therefore, the applicant’s case should be dealt
with according to its own unique nature.
 J46

In conclusion, I find that the Tribunal’s mandate has already

been achieved only to the extent that the applicant has pre-
empted the Tribunal’s recommendation by removing himself from
office by way of resignation. However, in terms of the actual
inquiry, I am of the view that the same can be considered to have
been frustrated by the resignation in that at the end of the
inquiry, the Tribunal’s recommendation for the lifting of the
suspension or removal from office would be ineffective as against
the applicant.

Therefore, on the ground of the Tribunal acting in excess of

jurisdiction by insisting to proceed against the applicant, I am
persuaded by the applicant’s arguments that the applicant’s
resignation from his office as a Supreme Court Judge placed him
outside the Tribunal’s jurisdiction under Article 98(3) of the
Constitution. How can the applicant be investigated as a private
individual under that provision that relates to judges? On that
first part of the ground, I find that the Tribunal is acting in excess
of its jurisdiction by insisting on proceeding against the applicant.

The second part of this ground relates to the issue of the

Tribunal acting in excess of jurisdiction by inviting unknown
persons to go and testify against the applicant before the Tribunal
on internal matters pertaining to allocation of cases within the
Judiciary. Had the proceedings against the applicant gone ahead,
this would have been a matter for the Tribunal to determine
 J47

whether such persons were competent witnesses whose

testimonies should be taken seriously based on how they came to
be in possession of such knowledge. In other words, these are
matters that relate to the merits of the case or inquiry and is not
for this court. I, therefore, find that the Tribunal did not act in
excess of jurisdiction in that regard.

The applicant’s third ground for seeking judicial review is

that of unreasonableness or irrationality in the exercise of the
power or decision-making by the Tribunal to proceed with the
hearing against the applicant. Therefore, this court has to
determine whether the procedure or process used to arrive at the
said decision was irrational or unreasonable as alleged by the
applicant. The standard for determining irrationality or
unreasonableness as a ground for judicial review was enunciated
in the case of ASSOCIATED PROVINCIAL PICTURE HOUSES v
WEDNESBURY CORPORATION11 and later espoused by Lord
Diplock in the case of COUNCIL OF CIVIL SERVICE UNION v
MINISTER OF STATE FOR CIVIL SERVICE when he stated:

“…….. By irrationality I mean what can now be

succinctly
referred to as Wednesbury unreasonableness. It
applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that
 J48

no sensible person who had applied his mind to the

question to be decided could have arrived at it.”

In the present case the Tribunal set up to investigate the conduct

of three named judges including the applicant, decided to
proceed with the hearing against the applicant after he resigned
and ceased being a judicial officer within the meaning of section 2
of the Judicial Code of Conduct, Act № 13 of 1999. The applicant
alleged that the Tribunal’s decision to proceed against him is so
unreasonable in the Wednesbury sense based on the following
reasons:

(a) that the Tribunal wants to determine a matter

that has already been resolved or determined
through the applicant’s resignation, and thereby
rendering the tribunal hearings otiose;

(b) that the Tribunal is determined to spend huge

sums of tax payers’ money on an academic
exercise whose outcome shall not be
implementable following the applicant’s
resignation; and

(c) that the Tribunal’s decision disregards and is

contrary to the Supreme Court’s advice for the
 J49

Tribunal hearing not to proceed in view of

constitutional issues involved in the matter.

I will proceed to deal with each of the issues raised under

this third ground that the Tribunal’s decision to proceed against
the applicant is so unreasonable in the Wednesbury sense.

The first reason advanced for challenging the Tribunal’s

decision for being Wednesbury unreasonable is that the Tribunal
wants to determine a matter that has already been resolved or
determined through the applicant’s resignation, and thereby
rendering the Tribunal hearings otiose. The issue of the matter
relating to the applicant having already been resolved or
determined has already been dealt with. Although the actual
inquiry was not carried out so as to resolve or determine the
matter, by the applicant’s resignation from office as a Supreme
Court Judge entailed that the Tribunal cannot make a
recommendation for his removal even if the hearing proceeded.

Further, the applicant contends that the Tribunal is

determined to spend huge sums of tax payers’ money on an
academic exercise whose outcome shall not be implementable
following the applicant’s resignation. The applicant is therefore
questioning the rationale behind the Tribunal’s decision to
proceed with hearings against him at great expense only to come
up with a recommendation for either the lifting of the suspension
 J50

or removal from office. Either recommendation would serve no

purpose at this stage since the applicant already left office by way
of resignation. I, therefore, accept that this academic exercise
would not be implementable and thereby end up being a mere
waste of tax-payers’ money.

Considering the aforestated reasons advanced by the

applicant to support his third ground for judicial review, I am of
the considered view that the reasoning is sound enough to
support the ground of the Tribunal’s decision being so
unreasonable in the Wednesbury sense.

Further, under the same ground of Wednesbury

unreasonableness, I turn to the contention that the Tribunal’s
decision disregards and is contrary to the Supreme Court’s advice
for the Tribunal hearing not to proceed in view of constitutional
issues involved in the matter. Although the applicant has labelled
the Tribunal’s decision as Wednesbury unreasonable for
disregarding the Supreme Court’s advice for the Tribunal hearing
not to proceed, I agree with the respondent that the advice is not
legally binding on the Tribunal. As such, the Tribunal decision not
to follow the said advice cannot be said to be unreasonable in the
Wednesbury sense.

Finally, on the totality of the evidence and the law relating to

the grounds for judicial review and the reliefs sought by the
 J51

applicant, he succeeds on all three grounds with the exception of

a few issues resolved in the respondent’s favour.

The applicant seeks reliefs for orders of certiorari and

prohibition. I hereby grant the orders sought as follows:

(i) an order of certiorari quashing the decisions of the

Tribunal delivered on 18th June, 2013 and 28th June,
2013 respectively for the Tribunal to proceed with its
hearing against the applicant, Dr. Phillip Musonda
notwithstanding his resignation from office as
Supreme Court Judge;

(ii) an order of prohibition restraining the Tribunal from

acting outside or in excess of its jurisdiction by
proceeding against the applicant when the applicant
is no longer a Judicial Officer within the terms of
Article 98(3) of the Constitution of Zambia as read
with the definition of Judicial Officer in section 2 of
the Judicial Code of Conduct, Act № 13 of 1999.

I further award costs to the applicant, and in default of

agreement costs to be taxed.

Leave to appeal is also hereby granted.

 J52

DELIVERED this …………………..day of May, 2014 at Lusaka.

…………………………………………………
F. M. Lengalenga
JUDGE