Chikago and Another v Director of Anti Corruption Bureau (Civil Cause 33 of 2015) [2017] MWHC 910 (13 October 2017)

ge | IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 33 OF 2015 BETWEEN DR JAMES JOHN CHIKAGO ..........scceserereececececeeeaseees 18? PLAINTIFF ADEC ENTERPRISES LIMITED ............sesececeececereeeeees 2NP PLAINTIFF AND DIRECTOR OF THE ANTI-CORRUPTION BUREAU ......... DEFENDANT CORAM: HON. JUSTICE R. MBVUNDULA Gondwe, Counsel for the Plaintiffs Chiwala, Counsel for the Defendant Mpasu, Official Interpreter JUDGMENT Dr James John Chikago, the 1‘ plaintiff, is Malawi’s former ambassador to Japan. He is now retired from diplomatic service. After retirement he was the managing director of the 2" plaintiff, Adec Enterprises Limited (Adec), a company (which has since been liquidated) which Dr Chikago says was established to trade in farming, buying and exporting sesame seed to another company in Japan called Takameo Company Limited (Takameo). According to Dr Chikago, as part of its business arrangement Adec nominated National Bank of Malawi as its banker and the export business greatly relied on the bank for its financial support. It is in Dr Chikago’s evidence that a letter of credit in that regard was issued by a Japanese bank, Tokyo Mitsubishi Bank, as evidence that Takameo had reserved money to pay for the import of the sesame seed from Adec, and over a number of years there developed mutual trust. It is not in dispute that on or about 31% May 2006 the Anti-Corruption Bureau (the ACB), which is the defendant in this matter, arrested Dr Chikago on allegations of theft of public funds amounting to K5 919 092.81 which Dr Chikago claims was in reality sent through the normal Malawi Government channels to the Malawi embassy in Japan with instructions to buy a car for the then President of Malawi, Dr Bakili Muluzi, and to surrender the remaining amount to a Protocol Officer, Ms Edith Chinjala as her allowance during an advance party trip to Japan for a Presidential visit. Dr Chikago informed this court that he was detained and interrogated for over 5 hours at the ACB offices and later detained overnight at Blantyre police station, under inhumane conditions, and felt heavily humiliated, before being released on bail the following day by the Blantyre Magistrate Court. According to Dr Chikago, the case did not start off as the ACB was not ready to prosecute and he was later discharged by the court for lack of evidence. In May 2008 the ACB approached Dr Chikago so that he could be a state witness in a case against Dr Muluzi. Dr Chikago turned down the request after obtaining legal advice. On or about 7“ March 2009 the ACB arrested him again on the same charges as those that he was arrested upon in 2006. He was again detained and interrogated at the ACB offices, this time, he says, for about 4 hours before being released on bail. He says he was later rendered a co-accused in the case against Dr Muluzi and attended court, for several years, until when he was unconditionally discharged by the High Court on 23 January 2014. It is Dr Chikago’s case that on both occasions that he was arrested by the ACB, the ACB acted with malice and lack of reasonable or probable cause when they disregarded his explanation that he had received the money in question as an ambassador under instructions from authorities to purchase a vehicle for the then President of Malawi. With respect to the 2006 arrest Dr Chikago, in his supplementary witness statement, expresses the view that when he was invited by the ACB telephonically it did not occur to him that he was going to be arrested, but for security screening since he was to have an audience with the incumbent State President, Professor Bingu wa 2 Mutharika. He says he was therefore surprised when he found four officers in the investigations room who produced a warrant of arrest, before, he says, they heard his side of the story. Hence, he states, the arrest was pre-meditated and the invitation was a formality. He faults the ACB for arresting him without showing him an audit report from the National Audit Office or giving him a chance to explain. He also forms the view that he was arrested upon hearsay from his enemies as the evidence emerged that he was “the only ambassador discriminated for the arrest when colleagues were not arrested and yet they also received money from Treasury for the former President...” The ACB, he says, acted wrongfully, not by exercising a wrongful mandate, but by “its arbitrary powers to discriminate suspects”. Dr Chikago asserts that as a direct consequence of the arrest and charges of 2009: 1. National Bank of Malawi declined to continue extending a bank facility of K12 000 000.00 to Adec (exhibit P15) the facility being required for Adec to purchase and export 360 metric tonnes of sesame seed worth $260 000 then already contracted for through the issuance of a letter of credit dated 25" June 2009 from Tokyo Mitsubishi Bank to National Bank of Malawi (exhibit P18); 2. his personal and professional reputation was negatively affected as evidenced by National Bank of Malawi’s refusal to do further business with Adec over concerns with the 1“ plaintiffs case; 3. since the arrest he has failed to secure gainful employment despite that he possesses a doctorate degree in business administration and has experience in tea tasting and manufacture; 4, he gained bad publicity by the media as evidenced by exhibit P20, a copy of media coverage of his arrest and prosecution; 5. because the ACB acted with spite and malice towards him and thereby subjected him to humiliation and disgrace he was generally injured in his reputation and character as an international citizen by virtue of being a diplomat; 6. he has suffered considerable mental and bodily pain and anguish and trouble, inconvenience, anxiety and expense, and thereby suffered loss and damage. He claims, as a result, general damages for 1. wrongful arrest and false imprisonment 2. malicious prosecution 3. humiliation and loss of reputation 4. loss of income 5. loss of employment opportunities. He also claims special damages being 1. legal fees amounting to K2 250 000.00 2. costs incurred in reporting for bail: K270 000.00. He also claims costs of the action. The foregoing was Dr Chikago’s evidence in chief. Mr Moses Tembo from the ACB testified for the ACB. His evidence was that he was one of the investigations officers in the corruption case against Dr Chikago and Dr Muluzi, the former President of Malawi. He stated that sometime in 2005 the ACB received a complaint alleging that Dr Muluzi was siphoning millions of public money through corrupt activities and means, one of which included the transfer of public money to Malawi missions in foreign countries and then using embassy staff in those countries to withdraw the money, and ACB unearthed some evidence substantiating the allegations. Mr Tembo stated that during the course of the investigations the ACB came across a payment of K5 919 092.81 (equivalent to 5 982 435 Japanese Yen or US$54 565) which was remitted by the Treasury in the Ministry of Finance around October 2003 to the bank account of the Malawi Embassy in Tokyo, Japan and that when the funds were received by the Malawi embassy in Japan, Dr Chikago instructed the embassy staff to pay the money to him, which the embassy staff did, and when Dr Chikago was interviewed about it, he admitted that the money was indeed paid to him by the embassy staff and that he used it to purchase a personal vehicle for Dr Muluzi as per instructions received. Mr Tembo stated further that investigations by the ACB revealed that the money used by Dr Chikago to buy the vehicle was remitted to Japan in dubious circumstances because all officials involved at the Treasury expressed ignorance of the reason for remitting the money, all stating that they were simply carrying out instructions from their superiors. Mr Tembo stated that further investigations revealed that Dr Chikago was the only person at the embassy who was aware why 4 the money was remitted to the embassy account in Tokyo as evidenced by the fact that he instructed embassy officials to pay the money to him. It was Mr Tembo’s further evidence that from the above revelations the ACB concluded that the K5 919 092.81 payment was government money which was converted to personal use by Dr Muluzi and that Dr Chikago aided and abetted him by abusing his office as Malawi’s ambassador to Japan, and it was for those reasons that the ACB made a decision to arrest Dr Chikago in 2006. In the opinion of Mr Tembo it was quite clear that there was reasonable and probable cause for which Dr Chikago was arrested. During cross-examination and re-examination, Mr Tembo stated the following facts which he said emanated from the investigations: that after the funds were transferred to the embassy, a voucher was raised and a cheque issued in the name of Dr Chikago, before the funds were transferred into Dr Chikago’s personal account (the investigations officers had sight of took possession of the documents); that the embassy raised a goods received report but did not account for the money in the monthly return because the money was not used by the embassy but used to buy a vehicle for Dr Muluzi; again that accounts personnel at the embassy were not aware of the funds — the only person who was aware was Dr Chikago; that the vehicle which Dr Chikago bought was shipped to Malawi under a bill of lading in the personal name of Dr Muluzi and was registered in Malawi in the name of Dr Bakili Muluzi of P O Box 17, Limbe; and again that the persons who issued instructions at the Treasury said that they did not know the use of the money at the embassy. In respect of these matters Dr Chikago himself, during cross-examination and re- examination, had the following to say: that he did receive the money at the embassy, and instructions pertaining thereto in his capacity as the controlling officer; that the instructions to buy the vehicle came from the then Minister of Finance, Friday Jumbe; that he did not suspect his Minister to be a thief, and that that was how embassies operated the whole world; that the Minister told him to buy a vehicle for the President; that he could not tell if the vehicle was registered in the name of the Malawi government; that after receiving the money, Dr Chikago called Dr Muluzi to inquire what vehicle he preferred and was instructed to buy a Nissan Safari. He said that the money was “transited” from the embassy account through his personal 5 account and it was his secretary, a Japanese national, who handled the process of transmitting the money from Dr Chikago’s account to Nissan Corporation. As regards who the beneficiary of the vehicle was, there was presented to Dr Chikago, during cross-examination, an agreement he entered into with the ACB as part of a plea bargaining process, following his arrest in 2009, showing that vehicle was bought for Dr Muluzi. The material part of the agreement reads: “Whereas, the said Dr John Chikago has approached the Director of the Anti-Corruption Bureau (the Director) and informed him that he is ready and willing to explain fully and truthfully his part of the purchase of certain motor vehicles from Japan for and on behalf of Dr Elson Bakili Muluzi, and other matters as may be of interest to the said Anti- Corruption Bureau, having regard to the latter’s statutory responsibilities and: ...” Dr Chikago admitted in his testimony to have entered into that agreement and added that he later resiled from it, because contrary to his expectations he had not been offered a job in the public service, and therefore felt cheated and being treated as a fool. He said that he also he felt discriminated against because other ambassadors, whom he alleged to have also received money from Treasury, had neither been arrested nor turned into state witnesses. Mr Tembo’s further evidence was that since the arrest of Dr Chikago was part of the ongoing investigation into the suspected criminality of Dr Muluzi in connection with the theft of government money through embassies abroad, the ACB considered it necessary to use Dr Chikago as a state witness through a plea bargaining arrangement but the plaintiff, through his lawyers, declined the offer and attempted to expose the ACB’s proposal to the media with the aim of embarrassing the ACB, and the ACB complained to the plaintiff about this in a letter dated 23"! February 2010 from its then Director to Dr Chikago (exhibit D1). In 2010, according to Mr Tembo, Dr Chikago approached the ACB and voluntarily offered to become a state witness in the case against Dr Muluzi. There is produced a copy of a letter wherein Dr Chikago expressed such willingness (exhibit D2). That letter, dated 16" February 2010, is addressed to the Director of ACB, and the material part of it reads: “I am writing to follow-up on my voluntary offer to become a state witness and the subsequent telephonic conversation on 9 January 2010. My expectation was that the process would not take a long period but one month has already elapsed since the 9" of January. As a layman, kindly enlighten me of any further step I need to take in order for my offer to be considered by you Sir. I wish to reiterate my voluntary offer of becoming a state witness...” In his further evidence Mr Tembo stated that the ACB accepted the offer and engaged Dr Chikago to enter into a plea bargaining agreement, and in order to demonstrate his willingness to act as a state witness Dr Chikago was ready to furnish the ACB with a witness statement. Exhibit D3 is a copy of a letter dated 29" March 2010 from Dr Chikago to the ACB wherein he registers, inter alia, the fact that he had that morning reported to the ACB to furnish its officers with a witness statement as had been agreed the previous Friday. Sadly however, he stated, the same could not be done due to some technical problems at the ACB. Mr Tembo informed the court that in line with Dr Chikago’s voluntary offer it was part of the agreement that the ACB would allow Dr Chikago to be discharged from the 2006 criminal trial. It was the further evidence of Mr Tembo that Dr Chikago was made co-accused with Dr Muluzi in the 2009 criminal case in order to effectively handle the two cases, as they were based on the same facts in that Dr Chikago aided and abetted Dr Muluzi to use the K5 919 092.81 government money to purchase a personal vehicle. Mr Tembo opined here that there was therefore no malice in joining the two as co- accused. Regarding Dr Chikago’s discharge from the 2009 criminal case Mr Tembo informed the court that he was discharged because there was an arrangement (which still subsisted) that the ACB (through counsel Mwala) would raise no objection to the discharge so that Dr Chikago would act as a state witness in accordance with the agreement. Mr Tembo referred to the court ruling discharging Dr Chikago and pointed out that the presiding Judge took note of the arrangement for the plaintiff to become a state witness. With reference to the arrangement the court said: “But then having re-arrested and re-charged the 2" accused, the state initiated an agreement with the 2" accused primarily to facilitate an arrangement that would see the 2™ accused being used as a state witness. That arrangement is still subsisting. Clearly therefore the state should be deemed to have taken a stand not to prosecute the 2™ accused. This also comes out clearly in paragraph 7 of the affidavit in reply filed in (sic) behalf of the state by Clement Masauko Mwala in which he deposes as follows: “... the interest of the State is only to see the Accused out of this case so as to be utilized as a State witness at a later stage” ..._In essence, therefore, the state has no objection to have the 2" accused discharged.” Mr Tembo concluded by denying that Dr Chikago was wrongly imprisoned, prosecuted or wrongly deprived of his liberty, or that the ACB acted out of spite or with malice towards him, or that ACB’s conduct was arbitrary or oppressive, or that . the ACB made false accusations against him to the officers at Blantyre Police station, because at all material times Dr Chikago was aware what he did, i.e. aiding and abetting Dr Muluzi to steal the sum of K5 919 092.81, was illegal and criminal. For these reasons it is the ACB’s position that Dr Chikago is not entitled to damages. The issues for determination in this action are: 1. whether the ACB is liable for false imprisonment; whether the ACB is liable for malicious prosecution; whether the ACB is liable for humiliation and loss of reputation; whether the ACB is liable for loss of income; whether the ACB is liable for loss of employment opportunities; whether the ACB is liable for special damages; and whether the ACB is liable for costs of the action. aw SP The general rule as to proof in civil matters is that the burden of proof lies on the plaintiff to prove what he alleges. In certain instances however the defendant may also be called upon to prove certain matters. The standard of proof is on a balance of probabilities. False imprisonment consists of inflicting bodily restraint without lawful authority to justify the imprisonment. Imprisonment is the restraint of a person’s liberty. Where there is reasonable and probable cause for suspicion that a felony has been committed an authorized person can arrest the suspect. The burden of proving the existence of reasonable and probable cause is upon the defendant, in the case at hand, the ACB. See Kanyemba v Malawi Hotels Ltd [1991] 14 MLR 157; Walters v WH Smith & Son Ltd [1914] 1 KB 595; Hicks v Faulkner (1881) 8 QBD 167. Broughton v Jackson (1852) 21 LJ QB 265 at 267 Campbell CJ stated that the defendant must show reasonable grounds of suspicion to the satisfaction of the court, that it is not enough to state that he himself reasonably suspected. But he is not bound to set forth all the evidence. It is enough if he shows facts which would create a reasonable suspicion in the mind of a reasonable man. The case of John Lewis & Co Ltd v Tims [1952] AC 676 is authority for the position that failure to prosecute the person arrested does not necessarily justify a finding of false imprisonment. The underlying consideration is the existence or otherwise of reasonable grounds of suspicion of the commission of the offence. Malicious prosecution occurs when a defendant, without reasonable and probable cause and actuated by malice sets the plaintiffs prosecution in motion. The court in Manda v Ethanol Company Ltd [1993] 16(2) MLR 572 said that malicious prosecution “may briefly be defined as the malicious preferring of unreasonable criminal charge.” To prosecute is to set the law in motion or to institute the proceedings: Salmond on Torts 13" Ed. at page 720. To succeed on a claim for malicious prosecution the plaintiff must prove four elements: 1) that he was prosecuted by the defendant; 2) that the prosecution was determined in his favour; 3) that the prosecution was without reasonable cause; and 4) that it was malicious: Clerk and Lindsell on Torts 12" Ed. Paragraph 1695 at page 894. Failure to prove any of the four elements must result in the dismissal of the plaintiffs action. Mere suspicion is not a justification to commence a prosecution. It does not amount to reasonable and probable cause: Sulaimana and another v Attorney General [2004] MLR 383. It was stated in Sulaimana (at page 394) that it is the duty of the plaintiff 9 to prove the absence of reasonable and probable cause for the institution of the proceedings against him and that such absence may be established in one of two ways, namely, a) that the prosecutor had no honest belief in the probable guilt of the plaintiff, or b) that despite the prosecutor’s honest belief in the plaintiffs guilt, the facts which the defendant honestly believed would not lead a man of ordinary prudence and caution to that conclusion. As to the definition of malice the court in Sulaimana said (at page 395): “The proper description of malice is provided by Clerk and Lindsell on Torts (12ed) paragraph 1725 page 911. It provides as follows: “The term malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives; Mitchell v Jenkins (1883) 5 B& Ad.588. The proper motive for prosecution is of course, a desire to secure the ends of justice. If a plaintiff satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and proper cause.” The court went on to state that “to succeed on a claim for malicious prosecution, the plaintiff must show that there was no reasonable prospect of success with the proposed prosecution, and the prosecution has (sic) been instigated by the defendant who had acted with malice” (citing Mwafulirwa v Southern Bottlers Limited [1991] 14 MLR 316; Mvula v Norse International Limited [1992] 15 MLR 332 as case authorities on the point). The evidence laid before this court by both Dr Chikago and Mr Tembo concerning the transfer of the funds from Malawi to the embassy in Japan, as to how the funds found their way out of the embassy account and transferred to Nissan Corporation, and as to the use to which they were put, namely, the purchase of a vehicle for Dr Muluzi, and as to the fact that the said vehicle was shipped in his personal name to Malawi and ultimately registered in the personal name of Dr Muluzi, and not the Malawi government whose funds they were, compels this court to find without hesitation that there was reasonable and probable cause for the ACB to suspect that some criminal offence had been committed by Dr Chikago. The series of events 10 narrated in the evidence of the two witnesses in this case raise sufficiently reasonable grounds of suspicion for the satisfaction of this court, and any reasonable mind, of the probable guilt of Dr Chikago, in that he may have acquiesced to a plan or scheme whereby Malawi government funds were expended for individual benefit without legal authority or any lawful right thereto. On those same grounds, this court also finds that the institution of the criminal proceedings against Dr Chikago was without malice, as it is not the position that there was no reasonable prospect of success with the prosecution. The duty of the plaintiff to prove the absence of the reasonable and probable cause for the institution of the proceedings against him, as enumerated in Sulaimana that the ACB had no honest belief in the probability of his guilt, or that the facts which the ACB relied on would not lead a man of ordinary prudence and caution to that conclusion, has not been discharged. Put otherwise, Dr Chikago has failed to explain to the satisfaction of the court, why the belief by the ACB that he aided and abetted the commission of criminal offences should be discounted. Regarding the discharge of Dr Chikago from the criminal case, this court observes that the issue should not be considered in isolation and in disregard of the larger picture emanating from the totality of the evidence. This court would wish to state that it accepts the position advanced by the defendant that the process leading to the discharge was on account of the voluntary offer by Dr Chikago to serve as a state witness. The assertion that he was discharged for lack of evidence was not substantiated. As the court has already held, reasonable grounds for his arrest and prosecution did exist. Having found no wrongdoing on the part of the ACB as regards the claims for false imprisonment and malicious prosecution, Dr Chikago’s consequential claims for loss of reputation, loss of income, loss of employment opportunities and special damages cannot justifiably be upheld. They equally fail. In the result the action fails in its totality and is dismissed with costs. Pronounced in open court at Blantyre this 13 day of October 2017. R. Sr JUDGE 14