Legislation referred to:
Constitution of Zambia, Cap. 1 Arts. 21, 22, 23.
Societies Act, Cap. 105, ss. 8, 9
For the applicant:H Silweya, Messrs Silweya & Co.
For the respondent:No appearance.

(1)the applicant was not afforded the opportunity of being heard when the application and appeal were considered: and
(2)the reason for refusing registration is without merit.
After having submitted the application for registration on the 30th September 1976, the applicant received notification that the registrar refused to register the society in a document dated the 3rd October,1977, which reads:
REPUBLIC OF ZAMBIA
ORS/102/66/202
THE SOCIETIES RULES
NOTIFICATION OF REFUSAL TO REGISTER A SOCIETY  
To Mutendere Branch of New Jerusalem Church (name of Society)
I hereby give you notice that, in exercise of the powers conferred on me by Action *8/9 of the Societies Act, I have this day refused to register you as a society under the said Act on the grounds 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. Any appeal to the Minister against this refusal must be delivered to the Permanent Secretary within twenty-one days.

Dated at Lusaka the 3rd day of October, 1977.
(sgd: CL Masosa),
Registrar of Societies
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A similar document, dated the 25th January 1978, was received by the Kitwe Branch of the society.
On the 14th March, the applicant, through his advocates, appealed to the minister and the appeal was supported by a memorandum outlining the background to the appeal and setting forth arguments in support of the appeal, both in fact and in law. Neither the applicant nor his advocate made oral representations to the minister when the appeal was considered, the applicant's advocates having been advised that it was not necessary to appear. The dismissal of the appeal was communicated to the applicant's advocates by a letter dated the 24th May, 1978, in the following terms:
In reply please quote:

MHA/ORS/102/66/202
REPUBLIC OF ZAMBIA MINISTRY OF HOME AFFAIRS  
Old Secretariat
Independence Avenue
P.O. Box 1862
Lusaka
24th May,1978  
  
Messrs Silweya and Company,
P.O. Box 4426
Lusaka
Dear Sirs,
NEW JERUSALEM CHURCH LED BY LABSON ZIMBIA:S. 16 OF CAP 105  
  
1. I refer to your letter reference HS/HM/N3 dated 6th March, 1978 regarding the above subject, whose receipt my Permanent Secretary briefly acknowledge on 17th March 1978.
2. I wish to inform you that the refusal to register this  Society was based on the ground that the registration of the Society would not be in the interest of Law and Order in this country.
3. It has not been found possible, in these circumstances, to rescind the earlier decision.  
Yours faithfully,
(sgd.: W.J. Phiri)
W J Phiri, MP,
Minister
The constitution of the Jerusalem Church, which accompanied the application for registration, contain provision for the disciplining of its members in certain circumstances, and requires the church to obtain permission from Government before any conferences are held.
For the applicant Mr Silweya points out that Articles XXI, XXII  and XXIII of the Constitution of Zambia provide that the applicant cannot be hindered in the enjoyment of his freedom of conscience, which freedom includes that of religion, or of his freedom of expression or of
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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.
Although the Constitution guarantees the rights of freedom of conscience, expression, assembly and of association, these rights are subject to the qualification that nothing contained in or done under the authority of any law shall be inconsistent with or in contravention of such rights to the extent that it is shown that the law in question makes provision which is reasonably required in the interest of defence, public safety, public order, public morality or public health. Similar restrictions to the right to have a society registered are contained in s. 8 of the Societies Act:

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.
It follows that provided the registrar properly refused the application on grounds contained in s. 8, such refusal would not be a violation of the applicant's rights under the Constitution.
The Societies Act requires the registrar, subject to the provisions of the Act, to register a society upon application being made for its registration; s. 8 contains grounds upon which the registrar may refuse registration where it appears to him that the section applies, and the applicant submits that there was no evidence to show that any of the grounds set out in the section did in fact apply. The applicant relies on Ross - Clunis v Papadopoullos and Others (1), where the Commissioner for Limassol, after holding an inquiry, made an order under the Emergency Powers Order in Council, 1939, imposing a collective fine on the inhabitants of Limassol. It was contended on behalf of the inhabitants that there was no evidence before the court to show that there were any grounds upon which the commissioner was able to satisfy himself that the inhabitants were given an adequate opportunity of understanding the subject-matter of the inquiry and in making representations thereon Lord Morton of Henryto in delivering the judgment of the Privy Council, said at p. 560:
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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.  
Their Lordships feel the force of this argument, but they think that if it could be shown that there were no grounds upon which the Commissioner could be so satisfied, a court might infer either that he did not honestly form that view or that in forming it he could not have applied his mind to the relevant facts. In the 20  present case, however, there were ample grounds upon which the appellant could feel satisfied of the matters mentioned in regulation 5 (2).

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.
Megarry, V.C., in McInnes v Onslow Fane and Another (2), which report was not available at the hearing of these proceedings, dismissed an application for a declaration that the refusal to grant the plaintiff a boxing manager's licence was unlawful as there was no adequate reason for file refusal, and for a declaration that the defendant acted in breach of natural justice or unfairly in failing to inform the applicant of the case against him, so that he could answer it before his application was considered or be granted on oral hearing. The court was able to distinguish at least three categories of the type of decision that could be made, in respect of each of which different principles of the rules of natural justice, or of fairness, apply. There are forfeiture cases, where a decision takes  away an existing right or position; there are application cases, where the decision refuses the right or position that the applicant seeks; finally, there are expectation cases where the decision, refuses some legitimate expectation from what has already happened that the application will be granted. An example of a forfeiture case is where a licence is revoked, or membership of a club withdrawn; an application case would be where application is made for the issue of a licence or for membership of a club; an expectation case is where the application is for the renewal of a licence
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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.
In McInnes (2), there were no provision of any statute or contact which conferred any right on the plaintiff to a manager's licence; in the case of the applicant in these proceedings there was a duty on the registrar to register the society unless he exercised his discretion under s. 8. or was obliged to refuse registration under s. 9. In considering whether there was an obligation to give reasons for a decision or a duty to provide an applicant with information of the case against him, Megarry, V-C, in McInnes (2), at p. 219 said:

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
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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.
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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.

Application granted

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:
Held:
(i)An application for a stay of proceedings before the subordinate court is a condition precedent to the hearing of the summons by the District Registrar.
(ii)A condition precedent to the setting aside of judgment and the granting of leave to defend is that the District Registrar in the exercise of his discretion grants an order issued for the transfer of the case from the subordinate court to the High Court.
(iii)Such an application must be bona fide and satisfy the court that there is a defence on the merits.
Legislation referred to:
High Court Act, Cap. 50, s. 23 (2).
Subordinate Court Rules, Cap. 45, O. 38, r. 4.
For the defendant:L. Mwanawasa, Mwanawasa & Co.
For the plaintiff:J.S. Adams, Adams & Adams.

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.
I am quite satisfied that by virtue of s. 23 (2) the High Court has wide powers to transfer a cause from the subordinate court to the High Court. This subsection reads as follows:

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.
Thus it is quite clear from this sub-section that the court has powers to transfer from the subordinate court to itself, any cause or matter at any time or any stage. It should be said that the power to order such transfer on the part of the High Court is discretional. However, what one must bear in mind here is that the District Registrar was being asked to re transfer the cause from the subordinate court since the cause in question had been previously transferred from the High Court to subordinate court for purposes of enforcing a judgment of the High Court.
As I have said that without an order for a stay of proceedings before the subordinate court, it would mean that when the District Registrar was hearing the summons there was in fact another action pending before the subordinate court. This situation in my view is undesirable and can lead to many complications. The subordinate court has power to order a stay of proceedings in terms of O. 38, r. 4, of the Subordinate Courts Rules. Once an order for the stay has been granted by the subordinate court then it is up to the applicant to apply by way of summons to the High Court to transfer the proceedings from the subordinate court
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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.
The learned District Registrar in his ruling had disallowed the summons of the defendant when on the merits he found that the defendant had no defence to the action. He stated that he would be inclined to grant the summons for the transfer of the action provided there was a likelihood that the judgment would be set aside in the event of a transfer. In my view this was a proper direction on the part of the learned District Registrar. Then he dealt with the application to set aside judgment.  It is quite clear that his decision to dismiss the summons to transfer the action was based on the fact that there was no defence open to the defendant even if he was given leave to defend. As I have already stated the matter was complicated by the fact that a single summons was issued in respect of two distinct and separate reliefs sought.
I would like to add a further comment on the notice of appeal filed by the defendant in this mater. It would appear that the notice of appeal was directed to the refusal by the learned District Registrar to set aside judgment in default and to grant unconditional leave to defend the plaintiff's action. Nowhere in the notice or grounds of appeal does the defendant challenge the District Registrar's refusal of the application for the transfer of the action from the subordinate court to the High Court at Ndola. A condition precedent to the setting aside of judgment and the grant of leave to defend is that the learned District Registrar in the exercise of his discretion would have granted the summons (if one was issued) for the transfer of the cause from the subordinate court to the High Court. One would have thought that at the very least the notice of appeal would have referred to the refusal of an order for transfer by the learned District Registrar.
Before disposing of this matter, I would briefly refer to the merits of the application to set aside judgment and grant unconditional leave to defend. It is quite clear that it is open to the defendant in an action to apply to the High Court to set aside judgment in default of appearance and to be granted leave to defend the action. Any such application must
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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.
Thus for the foregoing reasons the appeal against the decision of the learned District Registrar is dismissed with costs to the plaintiff, such costs to be taxed in default of agreement.

Appeal dismissed