Zambia: High Court
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RTF formatZNPF BOARD v A-G AND OTHERS AND IN THE MATTER OF INDUSTRIAL RELATION COURTS DECISION DATED 29TH OCTOBER ,1982 AND AN APPLICATION FOR CERTIORARI (1983) Z.R. 140 (H.C.)
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HIGH
COURT (1983/HP/433) |
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Flynote
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Administrative Law - Remedy - Certiorari - When available. Courts - Hierarchy - Industrial Relations Court - Inferiority to High Court. Statutes - Construction - Industrial Relations Act, Cap. 517 s. 101 (3). Administrative Law - Judicial review - Ouster Clause - Effect of Civil Procedure - Parties - Legal representation - Attorney-General cited - Effect of. |
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Headnote
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The ZNPF Board, dissatisfied win the decision of the Industrial Relations Court commenced the present proceedings to hare the decision moved into the High Court and quashed. The legal argument centred upon the question whether the Industrial Relations Court was inferior to the High Court, and whether certiorari could issue despite the provisions of s.101 (3) of the Industrial Relations Act. During the course of the proceedings a question arose as to the proper place of the Attorney-General in the case.
Held:
p141
Legislation referred to: Industrial Relations Act, Cap. 517, ss. 96 (2), (3), (4), 100, 101 (2) (3), Constitution of Zambia, Cap. 1, Arts. 31 (1), 109 (1), (4), (5).
High Court Act, Cap. 50, as. 3 (1), 9 (1)
Malaya Industrial Relations Act, 1967, s. 29 (3) (a).
For the Attorney-General: A.G. Kinariwala, Senior State Advocate. |
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Judgment
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SAKALA, J.:
This is an application by the Zambia
National Provident Fund Board (hereinafter referred to as the ZNPF
Board) by way of
certiorari for an order to remove the decision of
the Industrial Relation Court dated 29th October, 1982, for
purposes of
quashing it. For convenience, I will refer to the
Industrial Relations Court as the 'IRC' and to the Act as the
'IRA'. At the outset, it is
convenient to clarify the standing of the Attorney-General in
these proceedings. Before the commencement
of the hearing, Mr.
Kinariwala submitted that the Attorney-General cannot be made
partner to these proceedings because the
State was not a party to
the proceedings before the IRC. He pointed out that whether the
IRC is an inferior court to the
High Court or not is a question
which did not affect the State or the Attorney-General. In my
ruling at that stage, I pointed
out that the application raised a
significant constitutional issue which has not been before the
High Court, namely, the
relationship between the High Court and
the IRC. Thus I held that the Attorney-General should be a party
to these proceedings
although he was not a party before the IRC.
At the close of the arguments and submissions, it became evident
that the only
person who could have made arguments and submission
on behalf of the IRC was the Attorney-General. I ordered in my
ruling
p142
that the notice of motion
be amended to make the Attorney-General the first respondent. It
is for those reasons that the Attorney-General
is a party in these
proceedings. The grounds on which the relief is sought are as follows:
The application is supported by an affidavit. Paragraphs 4 to 10 of the affidavit read as follows:
The affidavit exhibits the
decision of the IRC dated 29th October, 1982, and the minutes of
the meeting of the ZNPF Board
held on 20th December, 1978. I must
observe in passing that the respondents did not file affidavit in
opposition. p143
The crux of this application is whether this court has jurisdiction to issue an order of certiorari to remove into it for the purposes of being quashed a decision of the IRC. On behalf of the applicant, Mr Banda advanced arguments in this court under four heads. These heads of arguments can be summarised as follows: (1) the IRC is an inferior court to the High Court; (2) the IRC is no part of the judicature of Zambia; (3) finality or ouster clause as combined in the IRA does :not take away from the High Court the supervisory jurisdiction over the IRC by way of a writ of certiorari (4) the decision of the IRC dated 29th October, 1982, is wrong both in law and in fact.
I propose to deal with the
first and second heads of arguments together as the submissions on
these overlap. On these two
heads of arguments, Mr Banda submitted
that the IRC is inferior to the High Court because it is not a
creature of the Constitution
but a creature of an Act of
Parliament which is subordinate to the Constitution. Counsel in
support of this submission referred
the court to section 96 of the
IRA that establishes the IRC. He further referred to Section 3 of
the IRA which defines the
word 'court' as a 'court of competed
jurisdiction other than the IRC'. Counsel further referred the
court to Section, 96(2)
of the IRA which sets out the composition
and membership of the IRC, namely, chairman., deputy-chairman and
two other members
or such a greater number as the President may
prescribe. Counsel argued that the High Court on the other hand is
constituted
by a single puisne judge. Drawing the attention of the
court to section 96(3) and (4) relating to the qualifications of
the
chairman an the deputy chairman of the IRC, namely, to be
persons who are or are qualified to be judges of the High Court,
counsel submitted that the IRC does not necessarily have to be
presided over by persons who are judges of the High Court although
they have to be lawyers. Counsel further submitted that in the
light of the foregoing, the IRC cannot be equated to High
Court
which has always to be presided over by a judge. Mr Banda also
brought to the attention of the court the fact that
the previous
chairman of the IRC was not a High Court Judge. Counsel further
made reference to article 31(1) of the Constitution
which defines
'court' as 'a court of law having jurisdiction in Zambia other
than a court established by a disciplinary law.'
For the foregoing
reasons, Mr. Banda submitted that this court being superior to the
IRC has jurisdiction to issue an order
of certiorari removing the
proceedings and decision of the IRC into it for purposes of
quashing it. In reply to Mr Banda's
submissions on the first and second arguments, Mr Kinariwala, on
behalf of the Attorney-General, submitted
that the IRC is a
special court conferred with special jurisdiction as contained in
Section 98 of the IRA Mr Kinariwala argued
that whether a
particular court is a superior court or not depends on the express
provisions of a statute making the same.
He submitted that the
Supreme Court is supreme because the legislature says so and it
has been expressly enacted. Equally,
the High Court has been
expressly stated to be a superior court of record. But Mr
Kinariwala contended that whether the IRC
is an inferior court p144
or not should also depend
on its composition under the IRA He submitted that under the IRA,
the chairman and the deputy chairman
have to be High Court Judges
or persons qualified to be High Court judges. He also pointed out
that from the inception of
the IRA the chairman has always been
High Court judge and the present chairman is a High Court judge.
Drawing the court's
attention to Rule 59 of the IRC Regulations of
1974, Mr Kinariwala submitted that the judgments of the IRC and
the High Court
are at par and have to be treated in similar
manner. It was thus Mr Kinariwala's contention that the High Court
and the IRC
are at par although with different jurisdiction. For
these reasons, he submitted that this court cannot grant the
relief
sought. On behalf of the second
respondents, Mr Mbaluku who made very brief submission and
concurred with the submission by Mr Kinariwala
on the question of
whether the IRC is an inferior court to the High Court or not. His
submissions are on record. On account
of what I have just said, I
find it unnecessary to make review of the same. I have fully addressed my
mind to the arguments and submissions by all learned counsel to
the first two heads of arguments.
It must be observed that under
these heads no authorities were cited to support the submission
apart from reference to statutes.
The explanation appears to be
that this is the first time that a decision of the IRC has been
challenged before the High
Court by way of an application for an
order of certiorari. Certiorari has been
generally defined by a number of decided cases and text book
writers as an order issued to an 'inferior
court' or a person or
body exercising what the High Court regards as a 'judicial' or
'quasi-judicial' function, to have
the record of the proceedings
removed into the High Court for review (if bad) to be quashed (see
Constitutional and Administrative Law by Hood Phillips, 5th ed.
page 535). What is an 'inferior court' for this purpose,
or
whether a person or body exercises powers of a 'judicial' or
'quasi-judicial' nature is for the High Court to decide
(see
page 536 of the same book). I have no difficulty in my mind in
arriving at the conclusion that the IRC is a court. The Act,
Cap.
517, says so (see
Section 96 (1) ). I have also no difficult in holding that on
29th October, 1982, the IRC by its decision subject of the
present
application exercised its judicial powers. My greatest difficulty,
however, is whether I can say without any doubt
that the IRC is an
'inferior court' to the High Court for me to grant the order
sought if I accept the arguments on merit.
Generally speaking,
any court or tribunal below the High Court is inferior to the High
Court. But this simplicitic formulation
begs the issue in the
instant case. But the two institutions, namely, the High Court and
the IRC have statutory origin. In
my opinion, a determination of
whether the IRC is inferior to the High Court must by and large
depend on the statutory provisions
as well as the rules governing
the two courts. A comparison of these in my view must lead to a
definite conclusion of the
relationship of the two courts. The statutory provisions
establishing the High Court and governing its procedures are
contained in the Constitution of Zambia
and the High p145
Court Act Cap. 50. Part VIII of the Constitution sets out the judicature of Zambia, namely, the Supreme Court and High Court. Article 109(1)(4)(5) of the Constitution read:
Also sections 3(1) and 9(1) of the High Court Act, Cap. 50 read:
An examination of these statutory provisions reveal that the High Court is a creature of the constitution while the IPC is a creature of an Act of Parliament. The High Court has been expressly stated to form part of the judicature. The IRC is not said to be part of the judicature. The High Court is superior court of record with unlimited jurisdiction in civil or criminal matters except where the IRC has exclusive jurisdiction. On the other hand, the IRC's jurisdiction is limited only to industrial matters. It is not said to be a superior court of record. The High Court has also supervisory jurisdiction in civil or criminal proceedings before any subordinate court. The IRC does not have this jurisdiction.
Another area of statutory
comparison relates to the composition of each court. The High
Court is and has always been presided
over by a judge. The IRC
does not necessarily need to be presided over by a judge although
the chairman and his deputy have
always to be lawyers (see
section 96 (3) (4)). A judge of the High Court is appointed by the
President p146
on the advice of the
Judicial Service Commission. Members of the IRC are appointed by
the President but not on the advice
of the Judicial Service
Commission. Turning to procedures, the
High Court is bound by rules of evidence in civil or criminal
proceedings. The IRC is not, its
chief function being "to do
substantial justice between the parties before it" (see
section 101 (2) of Cap. 517). On certain decisions the IRC has to
have regard to Government declared policy (see
section 100 of Cap. 517). This is not the case with the High
Court. From the foregoing comparison of the statutory and procedural provisions governing the two courts one clear fact emerges, namely, the IRC cannot be equated to the High Court although it is a special court. Its jurisdiction is certainly very limited. But the question remains, namely, is the IRC an "inferior court" to the High Court for purposes of prerogative writs like the one being sought by the present applicant? In the case of Rex v Chancellor of St Edmundsbury and Ipswich Diocese exparte White (1) the Court of Appeal held that certiorari does not lie to an Ecclesiastical court on the ground of what was said to be long settled practice where certiorari did not lie to ecclesiastical courts on account that those courts administered different type of law from common law and statutory law. However, at pages 222 and 223 Wrotlesley L.J. had this to say:
D.M. Gordon in his article Certiorari to an Ecclesiastical Court seems to suggest that the decisions is contrary to principle and authority. The court in that case also considered the question of inferiority of a court which I consider very persuasive in the present application. At page 205, Wrotlesley L. J said:
p147
jurisdiction. This is the
characteristic of an inferior court, whereas in the proceedings of
a superior court it will be presumed
that it acted within its
jurisdiction unless the contrary should appear either on the face
of the proceedings or aliunde."
I am inclined to accept
both tests. It goes without saying that the IRC in its proceedings
must act within its jurisdiction
as provided by the Act. I am
mindful that the present chairman of the IRC is a judge of the
High Court. But she presides
in the IRC not as judge of the High
Court but as chairman of the IRC exercising limited jurisdiction
of that court. Thus
after considering all the statutory provisions
governing the two courts, I have no doubt in concluding that the
IRC is not
a superior court of record and in my judgment it is
inferior to the High Court for the purposes of this application. The third head of argument
related to whether the finality or ouster clause as contained in
section 101 (3) of the IRA takes
away the jurisdiction of the High
Court to issue a writ of certiorari. Under this head both Mr Banda
and Mr Kinariwala cited
a number of English authorities. On behalf
of the applicant, Mr Banda contended that the existence of a
finality and ouster
clause in Section 101 (3) of Cap 517 tends to
suggest that the proceedings in the IRC must end there. Counsel
asked whether
that meant that a party aggrieved by the decision of
the IRC cannot move the High Court; by way of an application for
an
order of certiorari Mr Banda submitted that since the order of
certiorari is not an appeal, a court superior to the IRC can,
on a
proper application, remove the proceedings and the decision of the
IRC to the superior court for purposes of quashing
the same. Mr
Banda submitted that on a consideration of various decided cases
the finality and ouster clause as contained
in section 101 (3) of
the IRA does not take away the remedy of certiorari sought by the
applicant in the present, application. Mr Kinariwala submitted
that the authorities cited by counsel for the applicant are
judgments, by Lord Denning. He did not
elaborate but submitted
that all these cases should be distinguished from the present
because those cases did not contain
the ouster clause consisting
of the words as in the present case in that section 101 (3) uses
the word "final and binding
upon the parties and shall not be
questioned in any proceedings or court." Mr Kinariwala
pointed out that in the cases,
cited by counsel for the applicant
the finality and ouster clause did not contain the word
"proceedings." He submitted
that the word "proceedings
includes an application by summons petition or by way of writ of
certiorari. Counsel argued
that it was not necessary that the
legislature should have specifically excluded an application by
way of certiorari as it
was covered by the word "proceedings."
He urged the court to construe an Act of Parliament according to
the intention
declared by the legislature in the act. He submitted
that the language in Section 101 (3) is clear and explicit.
Counsel
submitted that the judgment or order of the IRC by virtue
of Section 101 (3) cannot be challenged any proceedings whether
commenced by writ, originating summons, notice of motion, petition
or by any prerogative writs. Mr Kinariwala p148
contended that the findings
of the IRC to the effect that the respondents were upgraded by the
Board at its meeting of 25th
July, 1978, was a finding of fact and
hence cannot be challenged. Section 101 (3) of Cap. 517 reads:
The crucial phrase in this section is one that reads "shall be final and binding upon the parties thereto" and "shall not be questioned in any proceedings or court". In the Court of Appeal case of Pearlman v Governors of Harrow School (3) the court considered a provision in the English Housing Act of 1974 with the phrase "final and conclusive." At page 742 Lord Denning had this to say:
Further, on the same page under a sub-heading "The No (certiorari Clause" section 107 Lord Denning said:
p149
To my mind that provision has no application to the present case. It applies only to proceedings under the Act of 1959, just as if the words "under this Act" were written into it. Certiorari is taken away in proceedings in which the Act of 1969 gives jurisdiction to County Courts, such as section 39 (actions of contracts and tort); section 48 (recovery of land); section 52 (Equity jurisdiction) and section 56 (Admiralty jurisdiction). In all such matters certiorari does not lie: but instead the statute gives a right of appeal on points of law: see section 108. In so interpreting section 107, I am following the lead of Cockburn C.J. in Ex parte Bradlaugh (1873) 3 Q.B.D. 509, 512, where there was a "no certiorari clause." He said:
I am inclined to accept the
dicta of Lord Denning on both the interpretation of the words
"final and conclusive"
appearing in a statute and also
the interpretation of "the no certiorari clause" in
statute. The IRA does not
contain provisions for appeal against
the decisions of the IRC. What remedy is then available to a party
aggrieved by the
decision of the IRC on a point of law? The Act
is silent. There is no provision of appeal. p150
The question of ouster of jurisdiction by statute has been fully considered in a recent Privy Council case of South East Asia Fire Bricks v Non - Metalic Union (4). On account of the view I take of than case, I propose to set out the facts from the headnote. The brief facts of that case were that, employees of the appellants were called out on strike by their union. The appellants informed the employees that unless they rebury to work within 48 hours, their services would be deemed to be terminated. The dispute was referred to the Industrial Court of Malaysia. Meanwhile, the employees on the advice of their union sought to return to work but the appellants refused to allow them to do so and locked them out. The question whether the locking out was legal was, also referred to the Industrial Court. The Industrial Court made an award favour of the union and the employees on the ground that the employees had not terminated their contracts by striking and ordered the appellants to reinstate them. The appellants applied to the High Court of Malaya for certiorari on the grounds of an error of law on the face of the record. The High Court granted the application and quashed the award of the Industrial Relations Court. The Federal Court of Malaya held that there had been no error of law and reversed the decision and restored the award of the Industrial Court. On appeal by the appellants to the Privy Council, the question arose whether the High Court had jurisdiction to quash an award of the Industrial Court on the ground of error of law. The respondents contended that the power of the High Court to grant certiorari to quash awards of the Industrial Court for errors of law had been ousted by section 29 (3) (a) of the Malaya Industrial Relations Act, 1967, which provided that "an award of the court shall be final and conclusive and no award shall be challenged, appealed against, reviewed, quashed or called into question in any court of law." It was held in that case that section, 29 (3) (a) of the 1967 Act, was elective to exclude powers of the High Court of Malaya to review the decisions of the Industrial Court of Malaysia, by certiorari because the expression "quashed" or called into question in any court of law" in than paragraph was clearly directed to and was amply wide enough to include certiorari procedure. Lord Fraser of Tullybelton in the course of his speech had this to say are page 692:
p151
The crux of the matter on
this point in the instant application is whether section 101 (3)
Cap. 517, effectively and clearly
ousts the jurisdiction of the
High Court to review the decisions of the IRC by way of certiorari
or merely prohibits appeals
? The Privy Council in the case cited
relied very heavily on the presence of the word "quashed"
in the ouster clause.
But the court further indicated that if
"quashed" were for borne reason not enough, the
expression "called
in question in any court of law. . . "
Wilson their opinion "amply wide enough to include certiorari
procedure.
" The expression "called into question in any
court of law" as used in the Malaysian Statute is in my
opinion
similar to the expression "shall not be questioned in
any proceedings or court" used in section 101(3) of Cap. 517.
The Privy Council decision is not binding on this court. But it is
decision of court of highest esteem which decided a point
which
is on all fours with the point raised by the present application.
I a mindful that the Malayan Statute deals only with
"an
award". But the wording of our sections is an "award or
decision." After very anxious moments
following upon the Privy Council decision. I hold that section
101(3) of the Industrial Relations
Act, Cap 517 excludes the power
of the High Court to issue orders of certiorari removing the
proceedings or decisions of
the Industrial Relations Court into
the High Court for purposes (if bad) of quashing the same. This
conclusion makes consideration
of the application on merit
unnecessary. p152
But before leaving the
matter, I would like to draw the attention of the authorities
concerned that in its present form the
IRA may result in certain
caves causing lot of injustice. I find it rather difficult to
imagine that it was the intention
of the legislature to deny a
party aggrieved by the decision of the IRC both the right of
appeal and the right to have the
decision of the IRC reviewed by
way of certiorari. Without touching on the merit of the
application, this may be classic
case where perhaps the aggrieved
party finds himself with no remedy assuming the IRC's decision is
bad in law. I say no more
on that but I hold serious views that
there is an urgent need to have second look at the Act. Be that
as it may, my ruling
is that the application is misconceived and
accordingly dismissed. On account of the issues raised, I order that each party will bear its own costs.
Application dismissed |
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ZAMBIA BREWERIES v