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The Appellant was chief executive officer of Lafarge Zambia. He was issued with a Zambian employment permit on 14 February 2012 which was valid for two years. On 3 December 2012, the Appellant was detained by immigration officers at Kenneth Kaunda International Airport. He was not given any reasons for his detention other than that the officers were under instructions to detain him. That same night, as the Appellant was being driven to Ndola to be put on a scheduled flight to Nairobi, he was furnished with a document revoking his permit.
Upon arrival in Ndola, it was found that the flight the Appellant was supposed to board had been rescheduled to depart later, and it was decided that the Appellant be put on a South African Airways flight to South Africa. As such, the Appellant was taken to wait at a lodge for the flight which was scheduled to leave at 13:00 hours the next day. When they went back to the airport, the Appellant was handed a Notice of Prohibited Immigrant to leave Zambia. This notice was stamped 5 December 2012 and stated that the Appellant had become a prohibited immigrant under section 35 (1) and (2) of the Immigration and Deportation Act No 18 of 2010 and the immigration authorities had been directed by the Minister of Home Affairs to order him to leave the country within 24 hours of receipt of the notice.
According to the notice, the Appellant was a prohibited immigrant because he belonged to persons named in Class D of the Second Schedule to the Immigration and Deportation Act No 18 of 2010. These were persons whose permit to remain in Zambia has expired or been revoked. The Appellant was also said to be a prohibited immigrant because the Minister of Home Affairs had in writing declared his presence in Zambia to be inimical to the public interest.
After the Appellant’s expulsion from Zambia, the Appellant through his lawyers, appealed to the Minister of Home Affairs for temporary exemption from the Class D category under the Immigration and Deportation Act No 18 of 2010. This was done to enable the Appellant return to work while a long term settlement was being sought. However, this application was rejected. The Appellant thus issued process in the High Court for Zambia seeking judicial review. He sought an order of certiorari, to move into the High Court, for purposes of quashing, the decision of the Director General of Immigration to revoke his work permit and deport him on the ground that the decision was procedurally improper and irrational. On the ground of procedural impropriety, the Appellant contended that the purported revocation of his permit and his subsequent deportation from Zambia were illegal and void ab initio as the sine qua non in section 10 of the Immigration and Deportation Act No 18 of 2010 was not satisfied. The Appellant alleged that he was neither accorded an opportunity to be heard nor was he given any reasons for the revocation of his work permit as provided for under section 10 (1) of the Immigration and Deportation Act No 18 of 2010. On the ground of irrationality, the Appellant contended that the decision of the Director General, purporting to revoke his permit and deport him, was premised on improper motives and bad faith, as no proper investigations were conducted.
In a ruling dated 19 February 2014, the High Court dismissed the Appellant’s application for an order of certiorari to quash the decision of the Director General of Immigration, revoking his employment permit and deporting him from Zambia. As a result, the Appellant appealed this ruling to the Supreme Court.
1. Where legislation seems to grant absolute discretion by leaving little or no room to question the legitimacy of an exercise of public power, courts ought to be conscious of emerging trends towards a more open and transparent government that promotes the rule of law, human rights and curbs arbitrariness. The Court should go behind the orders and delve into the circumstances in which the power was exercised especially where there is prima facie evidence of arbitrariness or perverse actions, to ensure that it was exercised lawfully and within the confines of the law.
2. Under section 34 (1) of the Act, the Director General of Immigration has the power, after giving a notice in writing, to revoke any permit issued under the Act, if the holder among others, is likely to be a danger to peace and good order in Zambia. Such a notice must specify the grounds on which the permit is revoked. The court below therefore properly found that the revocation of the Appellant’s work permit was void and of no effect as it was not preceded by the requisite notice and no reasons were advanced for the action.
3. A case is defined by its pleadings. In judicial review proceedings, the court has power to grant orders of mandamus, prohibition, certiorari, declarations, injunctions and even damages if these have been pleaded. The pleadings in this case showed that the Appellant only sought an order of certiorari relying on procedural impropriety and irrationality and he did not plead for the other reliefs. The learned trial Judge could not therefore be faulted for having confined himself to the reliefs that were pleaded.
4. The Minister of Home Affairs’ declaration that a person’s presence is inimical to the public interest should be made in writing in accordance with section 35 (2) of the Immigration and Deportation Act. Therefore, as there was no evidence of any declaration in writing that was made by the Minister, the determination of the Court below upholding the Minister’s decision is set aside. The removal of the Appellant from Zambia was unlawful.
Selected Judgment No. 47 of 2016
IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 96/2014
HOLDEN AT NDOLA
FOLAYINKA FOBISAIYE OLADIPO ESAN (MALE) APPELLANT
THE ATTORNEY GENERAL RESPONDENT