|HADDEN, J.: This is an application for an order of certiorari to remove into the High Court for the purpose of quashing a decision of the Registrar of Societies in refusing an application by the applicant to register as a society the Mutendere Branch of Jerusalem Church, the said refusal being upheld on appeal to the minister. Leave to apply was granted on the 19th July,1978. There was no appearance by the respondent.
The applicant submitted to the Registrar of Societies an application for the registration of a society to be known as Jerusalem Church, Mutendere Branch, on the 30th September, 1976, the objects of the society being to preach the words of God. The registrar, by a notice dated the 3rd October,1977, refused to register the society on the ground 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. An appeal was submitted to the minister who on the 24th May, 1978, notified the applicant's advocates that he refused to rescind the earlier decision. This application seeks to quash the decision to refuse registration and is based on the following grounds:
(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
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
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:
REPUBLIC OF ZAMBIA MINISTRY OF HOME AFFAIRS
P.O. Box 1862
Messrs Silweya and Company,
P.O. Box 4426
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.
(sgd.: W.J. Phiri)
W J Phiri, MP,
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
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:
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
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
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.
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.