Commentary by Tinenenji Banda
Full Case Can be Found HERE
The dispute concerned a memorandum of Understanding (MOU) executed between Kafue Horse Safaris limited and the Zambia Wildlife Authority (1st respondent). The subject of the MOU was the Appellant’s proposed provision of horse safaris in the Kafue National park. In terms of clause 2 of the MOU, the MOU was to be in force for a period not exceeding 6 months from the date of signing. After the lapse of the 6months period, the MOU was to be replaced by a Tourism Concession Agreement (TCA). Failing the execution of the TCA, the negotiations between two parties would be discontinued. The MOU was not replaced by a TCA because the first respondent’s did not sign the draft TCA. Aggrieved by the 1st respondent’s failure to sign the TCA, the appellant made a complaint to the Minister of Tourism. The minister informed the appellant that the ministry would consider executing the TCA if the appellant relocated its proposed business to another site, since there had been a community objection that the proposed site was “an active animal corridor” in contravention of the Environmental Council of Zambia’s direction on the matter.
The appellant filed an application before the High Court for judicial review of the respondent’s decision. The trial judge dismissed the application but granted manadamus to the appellant and instructed the first respondent to notify the appellant, in writing, of the reasons for the refusal to execute the TCA. The appellant appealed to the Supreme Court.
THE LEGAL ISSUES
The legal issues before the court were both procedural and substantive.
Procedurally, the issue was whether the appellant followed proper procedure in commencing the action, and if not, whether this improper commencement deprived the court of the requisite jurisdiction to hear the matter.
Substantively, the issues to be determined were as follows:
- Whether the party with the requisite authority to execute a TCA was the Director General of the 1st respondent or the Minister of Tourism.
- Whether the actions of the Director General (in refusing to execute the TCA) were irrational and unreasonable.
- Whether the appellant had a legitimate expectation that the first respondent would execute the TCA based on the fact that a draft TCA had been prepared.
- Whether the MOU had in fact granted the appellant a right to conduct horse safari’s for a period of six months
- Whether the failure to give reasons for the refusal to grant the first appellant a tour operator’s license was a breach of statutory duty and malfeasance of public office entitling the appellant to damages.
- Whether the grounds of judicial review are cumulative.
The court dealt with this substantive issues first. On issue 1, namely, the question of who has the power to execute the TCA, the court stated that this issue was common cause. Since the party to the TCA was the Director General (DG), it was clearly the DG that had the authority to execute the agreement. The court chided the trial judge for engaging this issue stating that the duty of the court was to decide issues in dispute and not issues that are common cause. On the second issue the court found that there was no irrationality or unreasonableness on the part of the director. Regarding issue 3, the court found that since the issue of legitimate expectation had not been raised in the trial court, it could not be raised on appeal. On issue 4, the court held that whatever rights accrued to the appellant under the MOU had expired after the lapse of the 6 months period, and therefore provisions in the expired MOU could not form the basis of any relief sought. On issue 5, the court found that the appellant was not entitled to damages because it had not proved loss. Finally regarding issue 6, the court held that there was not a single authority supporting the contention that the success of one ground of appeal cumulatively entailed the success of the others.
The court dealt with the procedural point last holding that the appellant had improperly commenced the action.
The Supreme Court’s disposal of the substantive issues was sound and in accordance with long established principals of judicial review. The court should be commended on its clear articulation of the legal principals applicable to the 6 grounds of review.
However the court’s treatment of the procedural question necessitates some comment. The court held that the applicant commenced their application in disregard of section 57 of the Zambia Wildlife Act which reads as follows:
- (1) where the Director-General refuses to issues a license, the applicant may, not later than one month after the receipt by the applicant of the notice given under subsection (2) of section fifty-six, appeal in writing to the authority against such refusal.
(2) In determining any appeal, the Authority my uphold the decision of the Director-General or may instruct the Director General to issue the license as applied for.
(3) The decision of the Authority on any appeal under this section shall be subject to appeal to the High Court.
The court noted that the applicant had contravened section 57 by seeking judicial review before appealing to the first respondent as mandated by s 57. The court further noted that due to the improper commencement of the action, the trial court had no jurisdiction to hear the matter. It held additionally that even if the appellant’s grounds of appeal had merit, the Supreme Court would still have dismissed the appeal on the grounds of improper commencement.
In light of the court’s observations, and given that the court has inherent jurisdiction to dismiss an improperly commenced application, it appears that the court’s engagement with the substantive issues was a waste of the court’s time. The Supreme Court in Chikuta vs Chipata Rural Society held that “where a party commences an action by a wrong mode, the court lacks the jurisdiction to grant the relief sought”. Based on this ruling, the present case was an excellent opportunity for the court to use its inherent jurisdiction and dismiss the appeal without engaging the merits. Actions that are improperly commenced and are therefore outside the court’s jurisdiction are a waste of valuable judicial time and delay the hearing of cases that are deserving of review. A stricter approach by the Supreme Court would encourage counsel to give greater heed to the proper commencement of cases and alert trial courts to their lack of jurisdiction to hear cases that are improperly commenced.
 Following the abolition of the Zambia wildlife authority in March 2015, section 57 has now been superseded by section 145(1) of the Zambia Wildlife Act [No. 14 of 2015] (an Act that provides for the winding up of the affairs of the Zambia Wildlife Authority) which reads “A person who is aggrieved with the decision of the director or committee under this act may appeal to the Minister within thirty days of the receipt of the decision of the director or committee. (2) The decision of the minister on an appeal under this section shall be subject to appeal to the high court within thirty days of the receipt of the decision of the minister.”