Exparte Gaffar v State and Another (Miscellaneous Civil Cause 75 of 2003) [2003] MWHC 126 (28 November 2003)

Ww 90= IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MISCELLANEOUS CIVIL CAUSE NO. 75 OF 2003 BETWEEN: Ee-parte: BASHID CAPE BR wicsascncazsssnuaisasmensvies APPLICANT - and - THE STATE } ANTI-CORRUPTION BUREAU}... RESPONDENT CORAM: CHIMASULA PHIRI J. C. Ngwira - of Counsel for the applicant D. Kanyenda~ - of Counsel for the respondents A. Machila - Court Clerk. RULING This is an application by the respondents to discharge an interlocutory injunction order on the grounds that the order was obtained irregularly and that the applicant is guilty of suppressing material facts. Further, the respondent prays that an order be made to discharge leave to move for judicial review which was granted to the applicant. The application is opposed. On 14th May 2003 the applicant obtained an ex parte order for leave to apply for judicial review pursuant to Order 53 Rule 3 of the Rules of the Supreme Court. The court also ordered an expedited trial and that the matter would commence by originating summons. The court further ordered that the respondent be restrained from continuing to seize and detain the applicant's motor vehicle registration number TO 2003 also registered as ZA 7909. Furthermore, it was ordered that an injunction be granted requiring that the respondent restores the said motor vehicle to the applicant. The application is supported by an affidavit of Kondwani Zulu and a supplementary affidavit of David Kanyenda. In his affidavit Mr Zulu states that he is an Investigations Officer of the Anti- corruption Bureau and took charge of investigating this matter. He has exhibited documents showing that some vehicles were stolen from RSA and corruptly registered in Malawi. Full details of the vehicles are given. These vehicles are a subject of criminal investigations in RSA. He has further stated that these vehicles crossed borders from RSA to Malawi without being issued a Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO) clearance certificate. On 6th September 2002 the Chief Resident Magistrate Court at Blantyre ordered the seizure of the vehicles in issue. The Director of ACB caused to be issued in the Government Gazette of 11th October 2002 and in the Nation newspaper of 21st October 2002 a disposal notice. These have been exhibited. The contents of the disposal notice are very clear — in essence to state that the property in the vehicles would vest in the State if within three months no claim was made by anyone. The purpose was to invite claims from legitimate owners and further establish the clearance of the same. The Gazette Notice was sent by registered post to the applicant. The Director of the ACB did not receive any claim to the vehicles within the stipulated period. Up todate he has not received any claim. In terms of the Gazetted Notice of seizure, the Director of ACB obtained an order for a vesting certificate from the Chief Resident Magistrate. It is exhibited. The essence of this vesting certificate is threefold. Firstly, it acknowledges the seizure order made by _ the court on 6th September 2002. Secondly, that the seizure was published in the Malawi Government Gazette inviting claimants to submit their claims within 3 months and that no such claims were made. Finally, that with effect from 11th January 2003 the property in the vehicles would vest in the State. In his affidavit, Mr Zulu contends that the applicant has deliberately suppressed the material facts to the court. He believes that the respondent has authority to seize the vehicles. He has further questioned the propriety of the injunction order against a public officer or the r lh igi S} pl gi* Government. Further, he has challenged the propriety of suing the ACB as a corporate body. In the supplementary affidavit, Mr Kanyenda states that it is his belief that the ACB made no decision amenable to judicial review. He has also challenged that the application for judicial review was not made promptly or within prescribed period. The prayer is that the injunction order and leave for judicial review be discharged. Counsel for the respondent adopted his skeleton arguments. In summary counsel contended that the ACB never made any decision and if any decision were made, it is not amenable to judicial review. Counsel submitted that the seizure order and consequential steps culminating in the vesting of title in the State was pursuant to a court order. Further, that if the applicant was aggrieved by the court order, the applicant should have review of the court order or appealed. Neither of these steps was taken by the applicant. The counter-argument of the applicant is that it is the Director of the ACB who moved the court to make such an order and as such it is the decision to move the court where judicial review will lie. Furthermore, it was Anti Corruption Bureau's decision to make ex parte application without a further inter-partes summons. Mr Ngwira, further argues that the vesting order was obtained by the ACB when it applied for the same and as such the ACB is answerable. Mr Ngwira submitted that the Anti Corruption Bureau could take the vesting step only after establishing that the rightful owner has absconded, cannot be traced, or admitted his involvement in the corrupt practices or where the court has so ordered on application by the Director of Anti Corruption Bureau. Mr Ngwira has argued that the applicant was not accorded an opportunity to be heard. It is the applicant's contention that his constitutional right to fair administrative justice was breached. It is stated that the applicant was not invited for any interview before the vesting order of 18th February 2003. Furthermore, it has been submitted that the ACB was supposed to interview the applicant or bring charges or prosecute the « ; applicant but this has not been done. Mr Ngwira has contended that such action or conduct is subject to judicial review. The second argument of the applicant is that the judicial review proceedings were brought within time because the vesting order was signed on 18th February 2003. Therefore, by 14th May 2003 when the judicial review proceedings commenced three months had not yet lapsed. The third argument of the applicant is that judicial review proceedings lie against a decision making process of a public body. The ACB is such a public body. The fourth point taken up by the applicant is that an interlocutory injunction order can be made against a public officer or Government. Finally, the applicant has accused the respondent of delaying the judicial proceedings by not filing an affidavit in opposition. I will start with the preliminary issue of whether or not a suit lies against the ACB. My learned brother Justice Kapanda made it very clear in Apex Car Sales Ltd vs The Anti-Corruption Bureau civil cause no. 3479 of 2000 that the Anti Corruption Bureau lacks corporate capacity to sue or be sued in its name. The Anti- Corruption Bureau cannot be a party to any legal suit. Any proceedings should be brought against the Attorney General as a Government Department or against the Director of the Anti- Corruption Bureau in his capacity as a public officer. I am of the view that it was not appropriate for the applicant to commence judicial review proceedings against a party suffering from (incapacity to sue or be sued in its own right. Such proceedings are a nullity and orders made thereunder be discharged. Assuming _ that the proceedings were properly instituted I will now consider the application on its merits. The applicant obtained an ex parte injunction order. The law is crystal clear that such an order is made on the basis that the applicant discloses all material facts and does so in utmost good faith. Any taint of bad faith through non-disclosure attracts the court's wrath through discharge or variation of such ex parte order. See R v Kensington Income Tax Commissioners ex parte Princess Edmond De Polignac [1917] KB 486 and Boyce vs Gill L. T. 824. In the present case I consider it to be a material fact that after the lower court ordered a seizure of the vehicle the Director of the Anti-Corruption Bureau duly published in the Malawi Government Gazette of 11th October 2002 and in the Nation newspaper of 21st October 2002. The notice is very clear and offered an opportunity to the applicant as early as October 2002 to challenge the seizure order. This was not disclosed in the affidavit of the applicant. If at all it was raised in the affidavit, it was a misrepresentation. If this had been clearly communicated to the judge, I believe no injunction order could have been granted. This being an equitable remedy any litigant who seeks this remedy must come to court with clean hands and make a full and frank disclosure. I would therefore discharge the injunction on that ground. There has been argument that no injunction order can be issued against Government. This is premised on Section 10 of the Civil Procedure (suits by or Against the Government or Public Officers) Act. It provides as follows: 10(1) Nothing in this Act contained shall be construed as authorising the grant of relief by way of injunction or specific performance against the Government, but in lieu thereof the court may make an order declaratory of the right of the Parties. 10(2) The court shall not in any suit grant any injunction or make any order against a public officer or making the order would be to give any relief against the Government which would not have been obtained in a suit against the Government. Sere WY At common law, the crown required protection to ensure mobility of governance activities hence no injunction against the crown. In Malawi apart from the inherited common law position, parliament made the above law. However, that was in 1946. There has been no problem until the democratic constitution of 1994 came into place. The Malawi Supreme Court of Appeal has guided the judicial officers that no injunction or specific performance orders be made against Government. However, there is still a long way for jurisprudence to be developed in relation to the 1994 Constitution. In Section 41(3) of the Constitution it has been provided that "every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him by this Constitution or any other law." The question is what is effective remedy? I have always been of the view that included in this phrase are orders of mandamus, certiorari and prohibition. Therefore I have to move from statutory level to the constitutional level and determine whether the act complained is one which promotes values which underlie an open and democratic society-vide: Chapter II of the Constitution. I would wish to believe that in certain instances an injunction order against the Government may be the only effective remedy. Why should the court not make such an order? I am of the view that the conditions under which Section 10 of the Civil Procedure (suits by or Against the Government or Public Officer) Act operated from 1946 to 1994 are different from the post 1994. I wish to subscribe to the views of Justice Kapanda in Miscellaneous Civil Cause No 3140 of 2001 Hon Brown Mpinganjira and 6 others vs The Speaker of the National Assembly and the Attorney General that in certain circumstances an injunction against the Government can be ordered by the court. Therefore the Malawi Supreme Court of Appeal should revisit the interpretation of this section. With respect, my view is that an injunction order can be made against Government (not only a declaratory order) but that may be it must be resorted to as last option when no other relief would serve as an effective remedy. In the present case the applicant had several options to challenge it by producing relevant documents or applying for judicial review of the court order or indeed appeal to this court against the seizure order. Appeals can be made out of time if there is good excuse for the delay. Hence it is my view that it was not appropriate to grant the injunction order against Government as interim relief and | would discharge it. The other point taken by the respondent is that the applicant has delayed in seeking judicial review. On the other hand the applicant contends that the proceedings were not taken out of time. Order 53 Rule 4 of the Rules of the Supreme Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the relief sought is an order of certiorari in respect of any judgement, order or conviction or other proceedings, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding. In this matter, the applicant has argued that the judicial review sought is in respect of the decision by the Anti Corruption Bureau to initiate ex parte proceedings culminating in the vesting order. If that is correct, that decision was made by the Anti Corruption Bureau before October 2002. Therefore commencing action in May 2003 is certainly out of time. I would discharge the leave that was granted. Assuming I am wrong, the decision under review is the vesting order dated 18th February 2003. Therefore by 14th May 2003 the period of 3 months had not yet lapsed. The next issue then for consideration is whether the Anti Corruption Bureau made a decision on 18th February 2003 which is amenable to judicial review. My short answer is that the exhibit in the form of vesting order of the magistrate court is not the decision of the Anti Corruption Bureau but the magistrate. It is clear that the applicant is not seeking judicial review of the subordinate court, otherwise the proceedings could have been brought specifically against such subordinate court. If the applicant is seeking judicial review of the order of the court dated 18th February 2003 then my view is that a wrong party has been sued. I would equally discharge the leave for judicial review on that point. gf C Therefore in conclusion I arrive at a position where the injunction order is dissolved and the order for leave for judicial review is discharged. The applicant is condemned in the costs for these proceedings. Similar orders are made for the following cases: (i) Miscellaneous Cause No 76 of 2003 Frank Singh vs Anti-Corruption Bureau and (ii) Miscellaneous Cause No. 79 of 2003 Nazir Omar v Anti-Corruption Bureau. MADE in Chambers this 28th day of November 2003 at Blantyre. We anl Mec } J Chimasula Phiri JUDGE