Ng`ambi v Director of Anti-Corruption Bureau (7 of 2009) [2010] MWSC 8 (26 April 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 07 OF 2OO9 (Being HigLt Court Misc. Application No. 224 of 2009) BETWEEN: COLLINS MONTE I\GAMBI .. ... APPELLANT AND DIRECTOR OF ANTI-CORRUPTION BUREAU RESPONDENT CORAM: HON. JUSTICE MTAMBO, SC, JA HON. JUSTICE TEMBO, SC, JA HON. JUSTICE NYIRENDA, SC, JA Makhalira, of Counsel for the Appellant Khunga, of Counsel for the Respondent Mwa1e, Court Official Ethel Matunga Chisale (Ndunya) Senior Personal Secretary JUDGMENT MTAMBO, SC, JA The circumstances leading to this appeal are these. On December 72, 2OOB, the Appellant was arrested by the Respondent on an allegation that he had committed an offence under the Corrupt Practices Act (Cap 7:O4) of the Laws of Malawi, hereinafter referred to as the Act. On January 30, 2009, the Respondent issued, and served on the Appeiiant, a Restriction Notice, hereinafter referred to as the Notice. The Notice was issued pursuant to s. 23 (I) of the Act. The section empowers the Respondent to direct, by written notice to any person, that such person shall not dispose of or otherwise deal with any property or proceed with any contract, transaction, agreement or other arrangement specified in such notice, which is the subj ect of, or otherurise implicated in, such investigation or prosecution rnrithout the consent of the Respondent. Pursuant to sub-s. (5) thereof the Appeilant applied to the High Court for an Order to reverse the directive. The appiication was dismissed on February 26, 2OO9. On May 6, 2OO9 the Notice was renewed in accordance with s. 23 (3) of the Act, which allows the Respondent to do so upon its expiry for further periods of three months, oo application to a magistrate showing cause why the notice should be renewed. The Appellant chailenged the renewal, again under s. 23 (5) of the Act. By the judgment dated June 17 , 2OO9 the application was dismissed. The court was of the view that the Appellant advanced nothing further than he presented in the earlier application. The Judge said: "ft therefore bafJles me that the same affidauit euidence tultich LUas before ma brother Judge has also been brougLtt before me in this application. There has not been arLA new and fresh euidence brought before me. If the applicant tuas dissatisfi"ed uLith the decision of mA Learned brother, Twea, J he should haue appealed; otherutise bringing similar application with seme affidauit euidence before another jud.ge hopirtg that a dffirent outcome utill arise is tantamount to an abuse of Court process". On August 31 , 2OO9 a seizure order was issued under s. 23 A of the Act, which empowers a court, among other things, to authorize the Respondent to serze any asset at any stage during the investigation of, or the proceeding for, an offence under the Act. Although the seizure order is not the subject of this appeal, we thought \ re should mention it for proper appreciation of the judgment. The appeal raises three issues. The first issue is simply "wLtetlter tlrc lower court ntling reflected on all the information that was deponed in the Appellant's affidauit and that of ttis aunt." In their affidavits both the Appellant and his aunt narrated how the Appellant acquired the assets in issue, nameiy, that he had u'orked for severa,l organrzations for a iong time and that he had inherited sufficient weaith from his deceased relatives. This is what the Court said: "TLte applicant filed his afJidauit explaining innocent acquisition or possesslon of the propertg in issue. The state fi,Ied an affi,dauit in opposition shouing the contrary. The applicart subsequently fiIed an affidauit of one Mailesi Ng'ambi, an aunt to the applicant, uthich tended to support the euidence of th"e applicant. I haue carefully examined the euidence. I am aurare that /his is not a trial. Mg duty at this stage ls to examine the euidence and determine uthetLter or not the restriction order is justifi"ed. It is on record that the applicant is employed and earns about K18,000.00 per month. In the period betuteen March and August 2008 he bought or acquired real propeftg: sk plots uithin Karonga Town Assemblg and he spent ouer K5,000,000.00 in cash. The applicant also acquired other pieces of land and propertg after that penod. The applicant deponed that the land and propertg were familg propefty. FurtLter that he disposed of some deceased estate property uithin the family and used the proceeds tLrcrefrom and some sauings to buA tLrc other properties. Howeuer, the penod in issue, 1992 - 2001 d.oes not tallg tuith the period" of acquisition of the property as deponed bg the state and tLtis has not been disnuted. It is my uieu tLterefore that the applicant has not satisfied tLtis court on balance of probabilities that the property ls family propeftg. I am inclined to belieue the State; that the property was acquired in quick succession and the means for the purchase thereof haue not be explained. This in mA uietu justifies the inuestigation and thus the restriction order". We are ourselves satisfied that the High Court took into account all the evidence that was before it as may clearly be seen from the passage rn'hich u'e have replicated above. We therefore find no merit in the argument that the court beiow did not reflect on all the relevant information that was before it, and we reject it. The second issue is whether the renewed Restriction Notice ". . .could haue been refused bg the louter court considering the lack of commitment on the part of the Respondent to speed up the matter". We have said above that a restriction notice may be renern'ed upon expiry for further periods of three months on application to a magistrate showing cause why the notice should be renewed. This is exactly u'hat was done. We do not, therefore, think that it could be a subject of appeal to this Court. If, however, the issue is raised with reference to the refusal by the High Court to reverse the reneu'ed Notice, we observe that the Ru1ing of the Court is dated June 17 , 2OO9, some six months after the investigation may have commenced. We do not think that a period of six months can be said to be so long as to found the inference that the Respondent lacked commitment to speed up the matter. The second issue too therefore is without merit. and it fails. The third issue is "tultether the Restriction Orders and sei^zure order e.re against the interest of justice regarding proprietorsLtip". It was submitted that since the dawn of the Restriction Notice on the property, the Appellant has been denied access to it and the proceeds therefrom which is contrarSr to the provisions of s. 28 (2) of the Constitution of the Republic of Malas'i which provides that no person shall be arbitrarily deprived of property. The question of arbitrarlz dsprivation of property does not arise here. The primary purpose for the Notice is to preserve the property so that there wouid be something to salvage in the event of a conviction and not to deprive the Appellant of it arbitrarily. It is more so considering that there is a procedure which must be followed before a notice is issued and effected. This a-rgument too must fail. Ali in all, the appea-l fails in its entirety and it is dismissed. That, however, is not the end of the matter. It has been brought to our attention that the Respondent appears to be taking its time about the case. We have said that the Appeiiant was arrested in December 2OOB. No charge, it appea-rs, has been brought against him. His property still remains sequestrated, so to speak. When this Court was faced with a similar situation in the case of Anti - Corruption Bureau v. Amos Chinkhadze MSCA Cr. App. No. 1 of 2003 (unreported). it observed as follou's: nh urould seem tha.t the Anti-Corntption Bureau has deueloped the reputation of mouing slotuly during and afier conducting tlrcir inuestigations. I uould obserue that when the Bureau has inuoked its restraining or seizure and freezing pouers under sec/lons 23- (1) and 32- (5) respectiuelg they slrculd moue su,,if,lg in order to bring about the speedy conclusion of the case uhictt the Bureau has against the suspected person. Delag in commerLcing criminal proceedings or pursuing such proceedings after they a"re commenced, amounts to conduct on tlrc part of ttte Bureau uhich ls oppressiue, unfair and unjust. Issuing restriction orders and obtaining seizure and freezing orders, and sitting back thereafter, maa produce results worse and more oppressiue than the notorious forfeiture orders of th,e old times." The Respondent does not seem to heed that. This is unacceptable to us. We therefore repeat that observation and direct that the Respondent do take steps, if this has not already been done, to bring the appellant before a court of iaw to be dealt with according to law within fourteen (1a) days next ensuing from the date of this judgment or he (the appellant) be at liberty to apply to the High Court to consider the propriety of continued seizure of his oropertv. DETMRED in open Court thts 27tn d.y of April, 2070 at Blantyre. Signed: r. J. TfTaffi;;Sc-*fe \\ \., \ \ ''-_\-\ -J1.-.-r,. \ \ .\_\ ! -\ <--- ,,--- : Signed: A. K. Tembo, SC, JA :-'--' Signed: nda, SC, JA