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Zimba v Attorney-General (HP 845 of 1978)  ZMHC 9 (22 February 1979);
LABSON ZIMBA v THE ATTORNEY-GENERAL (1979) Z.R. 83 (H.C.)
|HIGH COURT HADDEN, J.23RD FEBRUARY 1979 1978/HP/845|
|Administrative law - Certiorari - Registration of Societies - Refusal by Registrar to register society on ground that interest and welfare of country will be prejudiced - Obligation to give applicant reasons for refusal and opportunity to be heard.
Societies - Registration - Refusal to register - Societies Act, Cap. 105, s. 8.
|The applicant applied for the registration as a society of the Mutendere Branch of Jerusalem Church. The registrar refused the application on the ground that the interest of the peace, welfare or good order in Zambia would be likely to suffer prejudice. The said refusal was upheld on appeal to the minister. The applicant applied for an order of certiorari to remove into the High Court for the purpose of quashing the decision of the registrar. He submitted that he was not accorded an opportunity to be heard when the application and appeal were considered and secondly that the reason for the refusal was without merit.
(i)Under s. 8 of the Societies Act, the registrar may refuse to register or exempt from registration on the grounds that the society has among its objects or is likely to pursue or be used for any unlawful purpose or for any purpose prejudicial to or incompatible with the peace, welfare or good order in Zambia, and if he properly refuses the application on the above grounds, such refusal would not be a violation of the applicant's rights under the Constitution.
(ii)The registrar was under a statutory duty to have regard to certain criteria. He had to determine whether the interest of peace, welfare or good order in Zambia would be likely to suffer prejudice. There was a duty on him to act fairly and this required him, on considering the statutory grounds upon which he could refuse registration to give the applicant sufficient indication of any relevant objection raised against him to enable him to meet such objection without necessarily disclosing his source of information.
Cases referred to:
(1)Ross - Clunis v Papadopoullos and Others,  1 W.L.R. 546.
(2)McInnes v Onslow Fane and Another  3 All E.R. 211.
(3)Nagle v Feilden.,  1 All E.R. 689.
(4)R v Gaming Board for Great Britain, ex parte Benaim,  2 All E.R. 528.
(5)Re K(H) (an infant),  1 All E.R. 226.
Legislation referred to:
|HADDEN, J.: This is an application for an order of certiorari to remove into the High Court for the purpose of quashing a decision of the Registrar of Societies in refusing an application by the applicant to register as a society the Mutendere Branch of Jerusalem Church, the said refusal being upheld on appeal to the minister. Leave to apply was granted on the 19th July,1978. There was no appearance by the respondent.
The applicant submitted to the Registrar of Societies an application for the registration of a society to be known as Jerusalem Church, Mutendere Branch, on the 30th September, 1976, the objects of the society being to preach the words of God. The registrar, by a notice dated the 3rd October,1977, refused to register the society on the ground that the interest of the peace, welfare or good order in Zambia would otherwise be likely to suffer prejudice by reason of the registration, or exemption from registration, of this society. An appeal was submitted to the minister who on the 24th May, 1978, notified the applicant's advocates that he refused to rescind the earlier decision. This application seeks to quash the decision to refuse registration and is based on the following grounds:
(1)the applicant was not afforded the opportunity of being heard when the application and appeal were considered: and
Dated at Lusaka the 3rd day of October, 1977.
A similar document, dated the 25th January 1978, was received by the Kitwe Branch of the society.
assembly and association. The society, it is submitted, could not prejudice the peace and good order of the country and it is suggested that the reason why registration was refused was because of court proceedings that resulted in the conviction of nine members of the church for the offence of holding an unlawful assembly, after the application for registration had been lodged but before it had been refused. It is also submitted that the applicant was not given an opportunity of being heard either when the application was first considered by the registrar nor when the appeal was determined by the minister, nor was he notified of any information available to the registrar and minister that would have had had a bearing on the application so that he would have had an opportunity of meeting it.
The Registrar may refuse to register and shall not exempt from registration any society where it appears to him that such society has among its objects, or is likely to pursue or to be used for, any unlawful purpose or for any purpose prejudicial to or incompatible with the peace, welfare or good order in Zambia, or that the interests of the peace, welfare or good order in Zambia would otherwise be likely to suffer prejudice by reason of the registration or exemption from registration, of such society.
The last contention of counsel for the respondents was that the Commissioner had failed to comply with regulation 5(1) and (2). In their Lordships' opinion the only question of substance arising under this contention is the question whether the appellant discharged the positive duty cast upon him to 'satisfy himself that the inhabitants of the said area are given adequate opportunity of understanding the subject-matter of the inquiry and making representations thereon.' Mr MacKenna, for the appellant, submitted that the only duty cast upon the appellant was to satisfy himself of these facts; that the test was a subjective one, and the statement in paragraph 12 of the appellant's affidavit of December 4, 1956 (already quoted), was a complete answer to the argument of counsel for the respondents, unless it could be shown that the statement in the affidavit was not made in good faith, and bad faith was not alleged.
Although the court might infer that the registrar did not act honestly in refusing registration or did not apply his mind to the relevant facts, the memorandum submitted to the minister indicates that at one time the applicant was a member of the banned Lumpa Church, and although he disclaims any present adherence to that faith, this information dispels any inference that the court might otherwise reach.
or renewal of membership of a club. The applicant in these proceedings has not had any right forfeited nor can it be said that he had the legitimate expectation from what had already happened that any right would be granted. The decision falls into the category of an application case and the requirements of natural justice, or fairness, that have to be applied to such decisions should have been applied to this application.
I think it is clear that there is no general obligation to give reasons for a decision. Certainly in an application case where there are no statutory or contractual requirements but a simple discretion in the licensing body there is no obligation on that body to give their reasons. In Nagle v Feilden (3), to which I have already referred, Salmon, L.J., made this plain. The point is also carried by R v Gaming Board of Great Britain, ex parte Benaim (1). In the latter case, the Gaming Board were under a statutory obligation to have regard only to certain criteria. For this purpose the board were under a statutory obligation to take into consideration in particular 'the character, reputation and financial standing' of the applicants (and of certain other persons) for what in effect was the certificate of fitness that was requisite on application for a licence. The Court of Appeal held that the board were under a duty to act fairly which required the board to give the applicants a sufficient indication of any relevant objections raised against them to enable the applicants to meet them. On the other hand, the board need not reveal the details or the sources of the information, nor when the board came to decide the application need the board give any reasons. The board had exercised their statutory power to regulate their procedure, and under the procedure that the board had adopted they gave the applicants a hearing at which the board revealed in outline what was troubling them. The applicants were then given the opportunity of making further representations in writing before the application was decided; and the Court of Appeal held that this procedure satisfied the duty of the board to act fairly which flowed from the statutory obligation of the board to 'have regard only' to the specified matters.Counsel for the plaintiff, of course, relied on this decision. He also relied on Re K (H)(an infant) (5).There the question was whether an immigrant was under 16 years old, and so, as the son of a Commonwealth citizen ordinarily resident in the United Kingdom, had a statutory right of entry into the United Kingdom. Lord Parker,C.J., held that the immigration officer was under a duty
to give the immigrant an opportunity, of satisfying him of the matters in the relevant subsection, and for that purpose to let him know what his immediate impression was so that the immigrant could disabuse him. On the facts, it was held that this duty had been discharged. These causes seem to me to be very different from the case before me. In each there was a statute which conferred the power and the duty to decide on some defined issue. Here there is no statute and no defined issue but merely a general discretion. In the Gaming Board case (4), the character, reputation and financial standing of the applicants was in issue, so that the refusal of the certificate of fitness would be a slur on the applicants. In Re K(H)(an infant) (5), the question was whether or not the immigrant had a statutory right of entry. Here, there is no statutory or, indeed, any other true right; and certainly the refusal of a licence by no means necessarily puts any slur on the plaintiff's character. There are many reasons why a licence night be refused to an applicant of complete integrity, high repute and financial stability. Some may be wholly unconnected with the applicant, as where there are already too many licensees for the good of boxing under existing conditions. Others will relate to the applicant. They may be discreditable to him, as where he is dishonest or drunkard; or they may be free from discredit, as where he suffers from physical or mental ill-health, or is too young, or too inexperienced, or too old, or simply lacks the personality or strength of character required for what no doubt may be an exacting occupation. There may be 'no case against him' at all, in the sense of some thing warranting forfeiture or expulsion; instead, there may simply be the absence of enough in favour of granting the licence. Indeed, in most cases the more demanding and responsible the occupation for which the licence is required, the greater will be the part likely to be played by considerations of the general suitability of the applicant, as distinct from the mere absence of moral or other blemishes. The more important these general considerations are, the less appropriate does it appear to be to require the licensing body to indicate to the applicant the nature of the 'case against him'. I think that this applies in the present case.
As in the case of R v Gaming Board for Great Britain, ex parte Benaim (4), the registrar was under a statutory duty to have regard to certain criteria; he had to determine whether the interests of peace, welfare or good order in Zambia would be likely to super prejudice. There was a duty on the registrar to act fairly and this required him, in considering the statutory grounds upon which he could refuse registration, to give the applicant a sufficient indication of any relevant objection raised against him to enable him to meet such objection without of, course, necessarily disclosing his source of information. As the applicant was not provided with this information or opportunity, the refusal to register by the registrar and the subsequent decision on appeal must be set aside.
The order of the court is that the proceedings regarding the application to the registrar and those on appeal be removed into the High Court for Zambia to be quashed forthwith.
10|2 March 1979|Chenda v Satkaam Limited|1978/HN/136| ZMHC 10|(1979) Z.R. 119 (H.C.)|
EDSON CHENDA v SATKAAM LIMITED (1979) Z.R. 119 (H.C.)
|HIGH COURTMOODLEY, J.2ND MARCH, 19791978/HN/136|
|Civil procedure - Stay of execution - Judgment - Hearing of summons - Parallel actions - Whether possible.
Civil procedure - Discretion to transfer case - Re-transfer - Setting aside judgment and granting leave to defend - Condition precedent - Bona fide application.
|The plaintiff issued a specially endorsed writ against the defendant claiming a balance of almost K500 in respect of goods sold and delivered to the defendant at his request. The defendant did not enter an appearance and the plaintiff signed judgment in default of appearance. The case was transferred from the High Court to the Luanshya subordinate
court for enforcement of the judgment. The defendant applied to the District Registrar to re-transfer the action to the High Court so that he could apply to set aside the judgment and be granted unconditional leave to defend the action. The District Registrar disallowed the summons and on appeal:
|MOODLEY, J.: This is an appeal from a decision of the learned District Registrar at Ndola who had on the 9th November, 1978, disallowed a summons to transfer the above action from the subordinate court, Luanshya, to the High Court, Ndola, and an application to set aside a judgment which the plaintiff had obtained in default of appearance on the 27th February, 1978, and further that the appellant be granted unconditional liberty to defend the action.
Both Mr Mwanawasa for the appellant and Mr Adams for the respondent have made detailed submissions in chambers in support of their rival contentions. It would appear that on the 2nd September, 1977, the plaintiff issued a specially endorsed writ against the defendant claiming a balance of K495.91 in respect of the goods sold and delivered to the defendant at the defendant's request. The plaintiff says that the writ was served on the defendant personally and when the defendant had not entered an appearance on that writ the plaintiff signed judgment in default of appearance on the 27th of February, 1978, for the sum of K495.91 after credit had been given to the defendant for a sum of K200 which the defendant had paid against his debt. Thereafter the matter was transferred to the Subordinate Court in Luanshya for the purpose of enforcing the judgment of the High Court. It is understood that judgment summons had been issued against the defendant and the subordinate court thereupon made an order that he defendant discharge his debt by monthly instalments.
It is in these circumstances that the defendant had applied to the learned District Registrar to re-transfer the action from the subordinate
court, Luanshya, to the High Court so as to enable the defendant to apply to set aside the judgment and be granted unconditional leave to defend the action. In the course of the argument before this court the question arose as to whether in the light of the fact that the proceedings had been considerably advanced before the subordinate court to the extent that an order had been made against the defendant, this court had jurisdiction to entertain the summons in the first place. It should be said that the affidavit in support of the summons before the District Registrar omitted to provide a detailed reference to the previous proceedings in the High Court. Neither have there been any details concerning the subordinate court proceedings. Further it would appear that there was no application for stay of proceedings before the subordinate court so as to permit the learned District Registrar to hear the summons for the transfer or re-transfer of the cause from the subordinate court to the High Court and for setting aside judgment in default of appearance. Mr Mwanawasa suggests that a stay of execution was not a condition precedent to the hearing of the summons by the District Registrar. If Mr Mwanawasa is correct then it would appear that if there was no stay of the subordinate court proceedings and the learned District Registrar had proceeded to hear the summons which he did, then there would be two parallel actions in this matter, one before the subordinate court and another before the District Registrar.
Any cause or matter may, at any time or at any stage thereof, and either with or without the application of any of the parties thereto, be transferred by the Court or Judge from any Subordinate Court to any other Subordinate Court or to the Court, or from the Court to any Subordinate Court or from any Session or sitting of the Court to any other Session or sitting.
to the High Court. However, the summons in the form it was filed for hearing before the District Registrar was in fact misconceived. The first summons should apply for an order for the transfer of the cause from the subordinate court to the High Court. The reason is that the power to order the transfer is discretional. Thus the District Registrar had to decide first whether the exercise of his discretion he would grant the application for an order for the transfer of the cause to the High Court from the subordinate court. If he granted the application then he could go on to hear the other summons for the setting aside of the judgment and for leave to defend the action. If he refused to grant an application for the transfer then that is the end of the matter unless, of course, the applicant appeals against his decision on the grounds that the refusal to grant the transfer was an injudicious exercise of his discretion. It is my view that the learned District Registrar should not have heard a summons which contained both an application for transfer and an application to set aside judgment and to grant leave to defend.
be bona fide. If the applicant satisfied the court that there was good reason for judgment to be set aside and leave given to defend, the court will no doubt grant the application. In obtaining leave to defend the defendant need no more than establish a triable issue namely, he should satisfy the court that he has a defence on the merits. In para. 4 of the defendant's affidavit dated the 11th October, 1978, he avers that up and until the service of the judgment summons requiring him to appear before the subordinate court, Luanshya, on 27th July, 1978, he was not aware of the institution of legal proceedings against him as no court documents were ever served on him before this incident. The plaintiff in his affidavit dated 28th October, 1978, avers that the specially endorsed writ in this cause was served by the bailiff on the defendant personally and on the 25th October, 1978, the bailiff had given sworn evidence before the magistrate of the First Class at Luanshya of the said service. This was not refuted by the defendant in any subsequent affidavit. Quite clearly it would appear that the defendant's contentions that he was not served with a specially endorsed writ in this case and that he was ignorant of the proceedings before the High Court were false. In view of this therefore, the defendant's bona fide is questioned. Apart from this falsification, a further point that the court would consider is, if the defendant had entered appearance to the writ in the High Court and the plaintiff had applied for summary judgment under O.13 of the High Court Rules since the debt was a liquidated amount, would the court on the basis of the reasons adduced by the defendant grant leave to defend? It is quite clear that if one peruses the affidavit of the plaintiff sufficient evidence was adduced to show that the defendant was indebted to the plaintiff in respect of the amount claimed. If one reads the three documents exhibited to the plaintiff's affidavit as a whole, no other inference or interpretation is possible. The defendant had knowledge of the debt; he had agreed to payment; he had in fact discharged part of that debt until he decided to inform his employers to stop payment of the balance of the instalments which the employers were deducting from his salary .Would the court find that a mere bald denial of the debt and an assertion that the defendant had only introduced various unidentified customers to the plaintiff amount to a bona fide defence on the merits, especially when one considers that the defendant was found by the subordinate court to have been served with the specially endorsed writ, a fact which he had denied in his affidavit. It is quite clear that in the face of that kind of evidence the High Court must of necessity find that the defendant had not been acting in good faith; that he had not raised a defence on the merits and therefore no triable issue had been disclosed. In those circumstances the court will certainly in my view grant the application for summary judgment in respect of the liquidated debt.