THE PEOPLE v LUANSHYA MUNICIPAL COUNCIL EX PARTE CHENDAEKA (1969) ZR 69 (HC)

HIGH 35 COURT

GARDNER J

7th MAY 1969

Flynote and Headnote

[1] Administrative law - Road Traffic Commissioner - Roads and Road 40 Traffic Ordinance, section 148 -
Sits in quasi - judicial capacity.

The Road Traffic Commissioner, hearing applications for the grant of licences under the Roads and Road
Traffic Ordinance, section 148, is sitting as a quasi - judicial tribunal because he is under a duty to hold a
public sitting. 45

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GARDNER J

[2] Road Traffic and Roads - Road Traffic Commissioner - Roads and Road Traffic Ordinance, section 148
- Sits in quasi - judicial capacity.

See [1] above.

[3] Administrative Law - Road Traffic Commissioner - Roads and Road 5 Traffic Ordinance, section 152
(10) (a) - Sits in Administrative capacity.

The Road Traffic Commissioner, when deciding whether to revoke a licence under the Roads and Road
Traffic Ordinance, section 152 (10) (a), is acting in an administrative capacity.

[4] Road Traffic and Roads - Road Traffic Commissioner - Roads and Road 10 Traffic Ordinance, section
152 (10) (a) - Sits In Administrative capacity.

See [3] above.

[5] Local Government - Trading (Retail) Licence - Trades Licensing Act, 1968, Section 15 - Applicant need
not prove tenancy.

There is no onus on an applicant under section 15, Trades 15 Licensing Act, 1968, to prove a tenancy of
the premises in respect of which the application is made.

[6] Administrative Law - Trading (Retail) Licence - Trades Licensing Act, 1968, Section 15 - Applicant
need not prove tenancy.

See [5] above. 20

[7] Civil procedure - Mandamus - Notice of intention to apply for writ - must be given to Republic body.

When a writ of mandamus is sought, the public servant or tribunal against whom the writ is sought
must be given notice of the intention to apply and an opportunity to remedy the wrong 25 alleged.

[8] Administrative law - Local licensing authority - Trading (Retail) Licence - Trades Licensing Act, 1968,
section 15 - Sits in quasi - Judicial capacity.

A local licensing authority hearing applications under the 30 Trades Licensing Act, 1968, section 15, is
under no specific duty to hold a hearing, but it has power to call for evidence and to conduct its own
investigations into the circumstances of the application, and it is, therefore, quasi - judicial.

[9] Administrative law - Local licensing authority - Trading (Retail) 35 Licence - Trades Licensing Act,
1968, Section 15 - No power to decide for itself its capacity.

A local licensing authority hearing applications under the Trades Licensing Act has no power to decide
for itself whether it sits as a quasi - judicial or administrative body. 40

[10] Administrative law - Local licensing authority - Trading (Retail) Licence - Trades Licensing Act, 1968,
Section 15 (1) - Grounds for refusing a licence - If none applicable, must grant a licence.

A local licensing authority hearing applications under the

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GARDNER J

Trades Licensing Act must grant a licence unless it is able to refuse under one of the sub-sections of
section 15 (1), but on no other grounds.

[11] Administrative law - Local licensing authority - Trading (Retail) Licence - Trades Licensing Act, 1968,
section 15 (2) - Minister's 5 directions - Must be public.

A minister giving directions under the Trades Licensing Act, 1968, section 15 (2) should not do so in
secret.

[12] Local government - Local licensing authority - Trading (Retail) Licence - Trades Licensing Act, 1968,
section 15 (2) - Minister's 10 directions - Must be public.

See [11] above.

[13] Administrative law - Trading (Retail) Licence - Refusal - Appeal - Delay of Minister on appeal - May
appeal by way of prerogative writ.

The Trades Licensing Act, 1968, lays down that appeal is to the 15 Minister. Applications to the court
for a prerogative writ will be heard, however, where there have been delays in obtaining a decision from
the Minister on appeal.
[14] Local government - Trading (Retail) Licence - Refusal - Appeal - Delay of Minister on appeal - May
appeal by way of prerogative writ. 20

See [13]above.

[15] Administrative law - Trading (Retail) Licence - Trades Licensing Act, 1968, section 15 - Local licensing
authority must give applicant opportunity to answer objections.

A local licensing authority under the Trades Licensing Act, 25 1968, section 15, must give the applicant
an opportunity to answer any possible objection made by the authority.

16] Local government - Trading (Retail) Licence - Trades Licensing Act, 1968, section 15 - Local licensing
authority must give applicant opportuntity to answer objections. 30

See [15]above.

[17] Administrative law - Trading (Retail) Licence - Trades Licensing Act, 1968, section 15 - Hearing of
Applicant - May Appear in person or with legal representation.

The applicant should be allowed to appear before the local 35 licensing authority either in person or
with legal representation.

[18] Local Government - Trading (Retail) Licence - Trades Licensing Act, 1968, section 15 - Hearing of
applicant - May appear in person or with legal representation.

See [17]above. 40

[19] Civil procedure - Mandamus and certiorari - Application may be in alternative.

An application for the prerogative writs of mandamus and certiorari may be made in the alternative.

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GARDNER J

Cases cited:

(1) The People v Livingstone Municipal Council. Ex parte Simioti (1969) ZR 53.

(2) R v Metropolitan Police Commr. Ex parte Parker [1953] 2 All ER 717; [1953] 1 WLR 1150. 5

(3) Decision of the Road Service Appeal Tribunal in the case of L. M Shaikh, October 1, 1953
(unreported).

Statutes construed:

(1) Roads and Road Traffic Ordinance (Cap.173), ss.148, 152 (10) (a).

(2) Trades Licensing Act, 1968, (No.41 of 1968), ss.15 (1), 15 (2). 10
Sarah, with Porter, for the applicant.

Dare, Q.C., with Malama, for the respondent.

Judgment

Gardner J: In this case Mr Cosmas Bwalya Chendaeka applies for relief to this court in the form of orders
of certiorari and mandamus against the refusal of Luanshya Municipal Council to grant him a licence 15
under the Trades Licensing Act, 1968 (No. 41 of 1968) to operate a stall in the Mikomfwa Market,
Luanshya.

The application is supported by an affidavit by the applicant sworn on the 20th February, 1969, to the
effect that on the 25th day of October, 1968, he sent an application for a stall licence to the Luanshya
Municipal 20 Council accompanied by the prescribed fee under the Act. On the 10th February, 1969,
Luanshya Municipal Council wrote a letter to the applicant informing him that his licence application was
refused and returning his fee.

The applicant complains in paragraph eight of his affidavit that at no 25 time between the submission of
his application and of his being informed of its rejection was he given an opportunity to appear before
the Council to give evidence or to answer any objection.

In paragraph nine of his affidavit the applicant says that he has had no official reason given to him for the
rejection of his application but on or 30 about 30th January, 1969, one H. D. Kalyangile whom he knows
to be a councillor at the Council said to him: "No Jehovah's Witnesses under any circumstances will get
his licence because you did not vote in the Municipal Elections of 1966." In considering this case the
court does not take into account the allegation contained in the applicant's affidavit that one 35
councillor told him that he would not receive a licence because he was a Jehovah's Witness. This was
said by one councillor outside the council chamber and in the opinion of this court cannot be said to
indicate the view of all the councillors who heard the application. It does not appear from the record
whether the councillor who made this remark in fact 40 voted in connection with this application.

Leading counsel for the respondent, Mr Dare made a preliminary point that it was necessary for the
applicant or his solicitors to give notice to the respondents demanding the issue of the licence before the
applicant can come to this court to ask for a writ of mandamus to issue. Counsel for

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GARDNER J

the applicant, Mr Sarah, said he had no objection to this matter being resolved at the end of the hearing
and that he did not wish the matter to be argued before the whole of the case was heard.

In support of the applicant, Mr Sarah has argued mainly that the council did not act in accordance with
natural justice and therefore his 5 client is entitled to have the decision of the council quashed and an
order of this court that the council must hear the proceedings in accordance with the law. In reply, Mr
Dare for the respondent, has made four points in support of the proposition that the application should
be refused. Firstly he asks the question: "Can a local authority like the Luanshya Municipal 10 Council be
a judicial, quasi judicial or an administrative tribunal? " Secondly, Mr Dare argues that neither certiorari
nor mandamus will lie because there is an alternative remedy in the statute. Thirdly, Mr Dare argues that
there is an onus on the applicant to show that he has a tenancy of his premises and that if the council
can remove him from those premises 15 then an order of certiorari should not be made because the
council can render such an order completely nugatory by evicting the applicant from his premises.
Fourthly, Mr Dare argues that lack of demand for a licence after a first refusal is fatal to any application
for mandamus.

In considering my judgment in this case I take note of the fact that 20 no affidavit in opposition has been
submitted by the respondents.

I note the case of ex - parte Simioti [1], judgment in which was given in Lusaka on the 28th day of March
this year. I distinguish that case from the case at present before me on the grounds that in the Simioti [1]
case the respondent submitted affidavits denying that there was any bias 25 against the applicant and
after consideration of that evidence the court found that the Livingstone Council had not erred in law or
in fact. Furthermore, in this case the applicant has raised a question which is not considered in the
Simioti case namely that the applicant was given no opportunity to be heard by the licensing authority
when the licensing 30 authority were considering the possibility of refusing the grant of a licence.

Before dealing with Mr Sarah's argument that natural justice must prevail in any case I will for
convenience deal with the points raised by Mr Dare for the respondent.

The first point raised by Mr Dare was whether the council is a judicial, 35 quasi judicial or administrative
tribunal. He quotes the case of R v Metropolitan Police Commissioner. Ex Parte Parker [2] where on page
722 Donovan, J, said:

". . . If the commissioner had set up an inquiry, as Parker, J has just said, charging it to hear evidence
and to report its findings 40 to him so that he might decide whether to revoke the licence or not, then, in
my view, such a committee would be acting judicially, and would have to observe the rules of natural
justice."

In fact Parker, J, on page 721 of the same report said as follows:

"A different position might arise - I only say might arise - if the 45 commissioner were to say, in effect: 'I
have not the necessary

1969 ZR p74

GARDNER J

evidence on which to decide this, and I will cause an inquiry to be held so that I can have a report on
the facts.' The position might then be different...." (Emphasis supplied).
In my view, having examined the report of that case, I am satisfied that 5 the various judges in that
judgment were saying that the commissioner was acting in a wholly administrative capacity but under
certain circumstances he might possibly have acted in a judicial capacity. [1] [2] In this country under the
provisions of section 148 of the Roads and Road Traffic Ordinance (Cap. 173), the Road Traffic
Commissioner shall for the purpose 10 of hearing and determining applications for the grant of licences
hold public sittings. In that capacity he is obviously sitting as a quasi judicial tribunal. [3] [4] Under
section 152 sub-section 10 (a) the Road Traffic Commissioner may revoke the licence, subject to certain
conditions, in his administrative capacity, and it is my view that in the case of R v Metropolitan 15 Police
Commissioner. Ex Parte Parker [2] the power to revoke a licence was similar to the same power of the
Road Traffic Commissioner in this country namely administrative. I note that there is a difference
between the Roads and Road Traffic Ordinance in this country and the Trades Licensing Act namely that
under the former ordinance the Road 20 Traffic Commissioner is under a duty to hear applications
whereas under the Trades Licensing Act there is no specific duty to hold a hearing.

The second point made by Mr Dare is that neither a writ of certiorari nor mandamus should issue
because there is an alternative remedy under the act namely that of appeal. This argument is answered
by Mr Sarah 25 who puts forward the view that it is not so convenient, beneficial or effective to go by
way of appeal as by way of application for a prerogative writ to a High Court. In answer to question by
the Court Mr Sarah stated that there had been a delay in dealing with appeals by the appropriate
minister. Mr Dare agreed that the court was entitled to take the word of 30 counsel for such a state of
affairs and the court therefore accepts that there are delays in having appeals decided by the minister
and that therefore application for a prerogative writ is more convenient and beneficial.

The third point made by Mr Dare is that there is an onus on the applicant to show that he has premises,
and that no writ of certiorari or 35 mandamus should issue if the respondents can render an order null
and void by depriving an applicant of his tenancy. I have accepted in evidence a document which is the
application form by the applicant for his trades licence. In this he states he applies for a trades licence for
premises in Mikomfwa. No evidence has been led either by affidavit or otherwise to 40 suggest that the
applicant is not entitled to those premises in his own right. [5] [6] In those circumstances therefore I
cannot accept that there is any onus on the applicant to prove that he has premises and in this particular
case I cannot accept that there is any evidence that he has no right to those premises even if he had to
prove such a right. 45

[7] The fourth point made by Mr Dare is that notice must be given to the licensing authority before
application is made to this court for a writ of mandamus. I agree that there is overwhelming authority for
Mr Dare's

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GARDNER J

proposition that a public servant or tribunal must be given an opportunity to put right a wrong before
this court is asked to intervene. In this case, however, I accept Mr Sarah's argument that an application
to the Luanshya Municipal Council to change its mind and grant a licence would have been completely
nugatory. The council was functus officio. It has no power to 5 review its own decision and it would have
been a waste of time to make a demand.

[8] [9] In considering whether or not the Luanshya Municipal Council as the local licensing authority is a
quasi - judicial tribunal I have referred to all the cases cited by counsel. In this respect I do not accept 10
that the Council are the same in legal status as the Metropolitan Commissioner of Police in the case of ex
parte Parker [2] and I note that they have power to call for evidence and conduct their own
investigations into the circumstances of an application. In my view this constitutes them a quasi - judicial
tribunal and I cannot accept that they themselves have the 15 power to decide whether they will be
quasi - judicial or administrative.

I agree with Mr Sarah that the respondent council must have decided the refusal of this application on
some ground. Under section 15 (1) of the Trades Licensing Act the licensing authority may refuse to issue
a licence if it is satisfied: 20

"(a) that the applicant is under the apparent age of twenty - one, or,

(b) that the issue of such licence is likely to cause a nuisance or annoyance to persons residing . . . in
the neighbourhood . . .; or

(c) that the premises on which the applicant intends to conduct his business would not conform to
the requirements of any 25 law . . . In force; or,

(d) that the issue of such licence would conflict with any approved or proposed town planning scheme
or zoning area; or

(e) that the issue of such licence would operate against the public interest." 30

There is no evidence before me in this case that any of these considerations were taken into account by
the licensing authority but if they were I would refer to a judgment of the Road Service Appeal Tribunal
in the case of an appeal of L. M. Shaikh. [3] An extract from that judgment reads as follows:

"The Road Traffic Commissioner is entitled to take into consideration knowledge which he has acquired
in the course of his duties or as a result of investigations made by him for the purposes of deciding on
the application before him but if during a hearing he contemplates taking into consideration knowledge
so acquired of 40 specific matters he should give a fair opportunity to those who are before him of
dealing with those matters. Failure to give this opportunity conflicts with natural justice."

The Road Service Appeal Tribunal is not a court of parity with this court but I agree entirely with the view
of the Appeal Tribunal in that case. The 45

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GARDNER J
judgment I have quoted refers to a hearing by the Road Traffic Commissioner which I have already said is
mandatory upon him as opposed to the council which does not have to have a hearing by virtue of the
statute. However, I agree as I have said with the Tribunal that if anything is to be 5 raised against an
applicant he must be given notice thereof so that justice may be done and be seen to be done in which
case a hearing of the applicant and his legal adviser is necessary.

[10] I rule that a licensing authority under the section 15 (1) of the Trades Licensing Act must grant a
licence unless able to refuse a licence 10 under any of the sub-sections contained in section 15 (1). This
means that a licensing authority cannot take into account any matter other than those mentioned in the
section. It is noted that under sub-section 2 of section 15 the minister may either generally or specially in
any particular case give directions to any licensing authority in respect of the exercise of its functions 15
under the act in relation to matters which appear to him to affect the public interest. [11] [12] In the
event of the minister making such directions they should not be secret and an applicant must know what
directions are going to be followed in considering his application.

I do not accept the argument put forward by Mr. Dare that it would be too much trouble and indeed
impossible for the council to have a hearing of an application in every case. Many licences are granted
without argument and it is only in cases where there is some dispute that it would be necessary for there
to be a hearing. In any event no one should be deprived of justice because it is too much trouble. 25

The respondents in this case have not sought to allege that the proceedings which they conducted were
in order and should not be the subject of scrutiny of this court except for the technical reasons argued by
Mr Dare on the grounds that this court has no power to examine the conduct of the licensing authority.
30

I do not accept Mr Sarah's argument that because there is no appeal from the minister it is necessary,
convenient or beneficial to come to this court in lieu of appealing to the minister. [13] [14] The statute
lays down a particular mode of appeal and that mode of appeal must be followed. In this case the court
will only consider granting a prerogative writ on the 35 grounds that, in the peculiar circumstances of
this case and others arising at a similar time, Mr Sarah has said that there have been delays in obtaining
a decision from the minister on appeal.

After considering all the arguments advanced by counsel I find that:

[15] [16] 1. The applicant should have been given an opportunity 40 to answer any possible objection
by the licensing authority.

[17] [18] 2. The applicant should have been allowed to appear before the council in person or with a
legal adviser if necessary.

[13] [14] 3. That solely because there have been delays in deciding appeals to the minister this court
feels bound to entertain 45 applications for prerogative writs.

1969 ZR p77
GARDNER J

4. In this case there was a proposal to the Licensing Authority and there must have been an
opposition on the very facts which have been adduced in evidence by the applicant's affidavit.

5. There was a lis before the respondent council in the course of 5 considering the application.

[8 ] 6. The licensing authority is a judicial or quasi - judicial tribunal.

In view of those findings the court gives judgment in favour of the applicant and I make an order in the
following terms.

1. That the order made by the Luanshya Municipal Council on 10 the 10th day of February, 1969,
refusing to grant a trades licence to the applicant be removed into the High Court of Zambia.

2. That thereupon the said order be quashed.

3. That the said Luanshya Municipal Council do and they are 15 hereby commanded to hear and
determine forthwith the application by the applicant for a stall licence according to law namely within
the terms of section 15 (1) of the Trades Licensing Act.

Orders accordingly 20

The Court has made orders in favour of the applicant in both cases.

[1] There is no reason why an applicant should not apply for both remedies in the alternative if he likes
without being condemned in costs for so doing.

Costs to applicant on both applications for mandamus and certiorari. 25

1969 ZR p77