Judgment
Delivered on 4th June 2025
Court: In the Court of Appeal Of Zambia, Holden at Lusaka
( Civil Jurisdiction)
Panel: Mr.
Justice C. Kafunda
Judgment of the
Court by: Mr.
Justice C. Kafunda
Subject Matter: Administrative Law in Zambia – Retrospective Application of Rules in Zambia – Discrimination – Procedural Fairness – Natural Justice in Zambia
Facts:
This
case involves an appeal by Chelman Nshitima and 50 other appellants against a
decision by the Council of the Zambia Institute of Advanced Legal Education
(ZIALE). The appellants were excluded from continuing in the Legal
Practitioner's Qualifying Examination Course (LPQE) based on the Zambia
Institute of Advanced Legal Education (Student) Rules, 2021 (Student Rules of
2021).
The appellants had initially
enrolled under the Zambia Institute of Advanced Legal Education (Student) Rules
1985 (Revoked Student Rules). Under the old rules, a candidate who failed a
particular examination three times faced a five-year ban before being allowed
to re-attempt the course.
Upon the enactment of the Student
Rules of 2021, ZIALE applied the new rules to the appellants, effectively
excluding them from retaking any remaining head(s) after a minimum of three
consecutive failed attempts. The appellants argued that this decision
constituted a retrospective application of the new rules, resulting in an
unjust permanent exclusion from the LPQE. They also contended that ZIALE failed
to adhere to Rule 37(d) of the Student Rules of 2021, a transitional provision
that should have allowed them one more examination attempt, especially since
some similarly situated students were permitted to retake examinations.
Furthermore, the appellants alleged that ZIALE rejected their petitions without
providing adequate reasons, thereby breaching natural justice and procedural
fairness.
Issues:
·
Whether ZIALE
retrospectively applied the Student Rules of 2021 to the appellants, unlawfully
depriving them of vested or accrued rights.
·
Whether ZIALE
erred in its interpretation or application of Rule 37(d) of the Student Rules
of 2021, leading to discrimination or unequal treatment by allowing some students
in similar circumstances to attempt another examination while excluding the
appellants.
·
Whether ZIALE's
failure to provide adequate reasons for rejecting the appellants' petitions
invalidated its decision to exclude them.
Holding:
The High Court held that the appeal was meritorious
and succeeded in its entirety.
On
Ground One (Retrospective Application): The
Court found that ZIALE unlawfully applied the Student Rules of 2021
retrospectively to the appellants. Rule 37(d) of the new rules explicitly provided
a transitional entitlement for students excluded under the old rules after
three attempts to sit for "one more examination." ZIALE's
interpretation, which sought to extinguish this entitlement, was inconsistent
with the plain meaning of the rule and the general presumption against
retrospectivity.
On
Ground Two (Discriminatory and Unequal Application): The Court found that ZIALE applied Rule 37(d)
unequally and without an intelligible basis, thereby discriminating against the
appellants. Despite the respondent's argument that the appellants failed to
provide specific evidence of favoured individuals, the Court noted the absence
of affidavit evidence or policy guidelines from ZIALE to demonstrate that its
decisions to allow other students to re-sit examinations were based on clear,
objective criteria. This lack of justification led the Court to infer arbitrariness
and a breach of the duty to act fairly and equitably.
On
Ground Three (Failure to Give Reasons): The
Court found that ZIALE's failure to provide adequate and individualised reasons
for the rejection of the appellants' petitions contravened the principles of
procedural fairness and natural justice. The Court stated that vague references
to "failure to meet the threshold" did not satisfy the legal standard
for reason-giving, especially for decisions affecting career progression and
fundamental rights. Such ambiguity rendered the right to appeal or seek
judicial review a daunting task and occasioned injustice.
Orders:
·
The decision of
the Council of the Zambia Institute of Advanced Legal Education excluding the
appellants from continuing in the Legal Practitioners Qualifying Examination
Course (LPQE) is quashed and set aside.
·
ZIALE is ordered
to allow each appellant one additional sitting for the outstanding head(s) they
had not yet passed, in accordance with the provisions of Rule 37(d), subject
only to any standard administrative formalities necessary to arrange for such
sitting.
·
The appellants
are awarded the costs of this appeal, to be taxed in default of agreement.
Full Case: Here